BJA v The Children's Guardian

Case •

[2014] NSWCATAD 191

•

07 November 2014

NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: BJA v The Children's Guardian [2014] NSWCATAD 191
Hearing dates:24 September 2014
Decision date: 07 November 2014
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
Decision:

The applicant's application for an enabling order is granted.

Catchwords: ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - disqualifying offence occurred in 1972 or 1973 - by reason of offence presumed to be a risk to children - whether applicant has discharged his onus to establish the contrary - power of the Children's Guardian to require a working with children clearance check where the applicant does not live in NSW.
Legislation Cited: Child Protection (Prohibited Employment) Act 1998
Child Protection (Working with Children) Act 2012
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Crimes Act 1900
Cases Cited: Billington v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 480
Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337
Commission for Children and Young People v V [2002] NSWSC 949.
Category:Principal judgment
Parties: BJA (Applicant)
The Children's Guardian (Respondent)
Representation: P Braine (Applicant)
Crown Solicitors Office (Respondent)
File Number(s):1410284
Publication restriction:Section 64(1), Civil and Administrative Tribunal Act 2013 - Restriction against publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

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 he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s 6 of the Act. The Children's Guardian opposes this application.

  1. The offence which brings the applicant within subsection 18(1) of the Act is that of indecently assaulting a female under the age of 16 years under s76 of the Crimes Act 1900 (as that Act applied in 1973). The applicant pleaded guilty to this offence on 3 April 1973 and was placed under a bond to be of good behaviour for a period of two years. This offence is a disqualifying offence falling within Schedule 2 of the Act.

  1. The notice by the Office of the Children's Guardian advising the applicant of his disqualification for a working with children check clearance is dated 22 May 2014. The applicant was subsequently notified of this decision and applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Act.

  1. 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 his family in addition to the victim of the 1972 offence are not to be published without the leave of the Tribunal. For this purpose the pseudonym BJA has been used for the applicant's name. The pseudonym BNT has been used for the applicant's wife, the pseudonym BNU for the couple's elder daughter, the pseudonyms BNV, BNW and BNX for the applicant's grandchildren and the pseudonym BNY for the niece of the applicant's wife.

Jurisdictional question

  1. Mr Braine, for the applicant, has submitted that because the applicant is not engaged in child-related work in NSW, the Children's Guardian has no power to either consider or refuse a working with children clearance check for him.

  1. Ms Hartstein, for the respondent, disputes this. It is common ground that the applicant's grandson, BNX, who is now 12 years old, lives with the applicant and his wife in Queensland. It is also common ground that the NSW Minister for Family and Community Services ('the NSW Minister') has parental responsibility for BNX and that the management of BNX's care is from NSW. For this reason, Ms Hartstein submits that BNX's carers need to have a working with children clearance check, whether or not they live in NSW or elsewhere. According to Ms Hartstein, in her exercise of parental responsibility, although the NSW Minister has allowed BNX to live with his grandparents in Queensland, his authorised carers remain subject to the provisions of the Child Protection (Working With Children) Act ('the Act')

  1. Section 231A of the Children and Young Persons (Care and Protection) Act 1998 provides for the 'transfer of child protection orders and proceedings between NSW and another State or a Territory of Australia or between New South Wales and New Zealand.' In this case, although mention is made of transferring the orders in relation to BNX's care to Queensland, there is no evidence that such a transfer has, in fact, taken place. In the Risk Assessment report prepared in April 2009 by Sue Buchanan, Casework Specialist, Metro-West Region, she explains the background to the care proceedings for the three children and notes that 'since their move to Queensland in 1999, the case management for BNV, BNW and, more recently, BNX has remained at Auburn and Parramatta Community Services Centres, respectively.' It would appear from updated reports that BNX's case management is still being handled by the Auburn and Parramatta Community Services Centres of the Department of Family and Community Services.

  1. On the evidence before it, and as accepted by both the applicant and the respondent, the Tribunal is satisfied that BNX remains under the parental responsibility of the NSW Minister and that his case continues to be managed from NSW, by the NSW Department of Family and Community Services. On this basis, the Tribunal finds that as his authorised carer, the applicant continues to be subject to the provisions of the Child Protection (Working with Children) Act. This includes s6(3) of the Act which provides that an authorised carer is held to be a worker engaged in 'child-related work'; and s8 which provides that a worker must not engage in child-related work unless he or she holds or has a current application for a working with children check clearance.

  1. Section 261(1) of the Children and Young Persons (Care and Protection) Act states that 'in the absence of proof to the contrary, the authority of the Minister or the Director-General to exercise any function conferred or imposed on the Minister or the Director-General by or under this Act, or to take any proceedings for the purposes of this Act, is to be presumed.'

  1. Section 71 of the Children and Young Persons (Care and Protection) Act gives the Children's Court the power to make a care order 'in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason.' Section 71A of this act states that it doesn't matter 'whether the conduct constituting a reason for the purposes of section 71 occurred wholly or partly outside the State.'

  1. From these provisions, it would appear that the jurisdiction of the Children's Court to make a care order extends to behaviour taking place outside NSW. Where, then, a child is under the parental responsibility of the NSW Minister and has his or her case managed from NSW, it seems logical that his or her authorised carer be required to have a working with children clearance check in accordance with the provisions of the Child Protection (Working with Children) Act. There is nothing in either this act or the Children and Young Persons (Care and Protection) Act to preclude this requirement simply because the child is not currently resident in NSW.

  1. The question of the extraterritoriality of state legislation was considered by Logan J in the case of Billington v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 480. In considering the question of the connection necessary for State extraterritorial legislative competence, Logan J referred to the case of Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337 in which Dixon J stated that:

The relation may consist in the presence within the territory, residence, domicile, carrying on business there or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers.

  1. In adopting this reasoning, Logan J states that:

In the absence of ....conflict [between the laws of two States] and in the presence of a relevant connection to sustain extraterritorial legislative competency, extraterritorial effect will be given to a State law purporting to have that effect.

  1. In this case, the relevant connection to sustain extraterritorial legislative competency is the fact that the applicant is the authorised carer of a child for whom the NSW Minister has parental responsibility and whose case is managed from NSW by caseworkers within the Department of Family and Community Services.

  1. For the reasons set out above, the Tribunal finds that, in this case, the Children's Guardian is empowered under the Child Protection (Working with Children) Act to request that the applicant obtain a working with children clearance check and to make an assessment of the applicant in relation to his application for a working with children clearance check.

  1. Given that the applicant has applied within time, as set out in s27(1) of the Act, and that the Tribunal has found that the Children's Guardian was empowered to request that the applicant obtain a working with children clearance check in accordance with s8 of the Act, the Tribunal finds that it has jurisdiction to hear and determine this application.

Evidence

  1. The respondent and the applicant have both placed material before the Tribunal.

Criminal record

  1. The applicant is now sixty-four years old. In 1967, when he was 17 years old, he was convicted of break, enter and steal and entered into a bond to be of good behaviour for a period of twelve months. In 1968, he was convicted of the carnal knowledge of the fourteen-year-old girl who he subsequently married, to whom he remains married, and with whom he has two children. At the time of the offence, stated to be one or about 1 November 1967, the applicant was a minor himself, namely 17 years of age. Because he was a minor at the time of the offence, it is not a disqualifying offence under Schedule 2 of the Child Protection (Working with Children) Act.

  1. In 1969, the applicant was fined for stating a false name and for driving whilst his licence was cancelled. As stated above, in 1973 the applicant pleaded guilty to indecently assaulting a female under the age of 16, which is the index offence in relation to this application. In 1974, the applicant was convicted of conspiracy and entered into a bond to be of good behaviour for a period of three years. Although there are no particulars of this offence, the applicant has stated that it related to an insurance fraud suggested by one of his friends. Although the applicant declined to be involved in the fraud, he provided his friend with the details of people who could assist him. According to the applicant, this constituted the conspiracy offence for which he was convicted. In 1976, the applicant was fined $400 for an offence of receiving.

  1. Since 1976, he has had no further criminal convictions.

Authorised carer

  1. According to records provided by the Children's Guardian, the applicant and his wife have been authorised carers for their granddaughters BNV and BNW since 1999. In court proceedings in relationship to the wardship of BNW, the magistrate referred to medical records for the child's mother - the elder daughter of the applicant and his wife - which provide a diagnosis of personality disorder, heroin dependence and diazepam dependence.

  1. In an affidavit placed before the Tribunal, the applicant confirms his care of his three grandchildren:

In relation to my daughter BNU, she has three children, BNV, now aged 20 years, BNW now aged 18 years and BNX aged 12 years. BNV and BNW were placed in our care by the Children's Court following Children's Court proceedings in New South Wales in 1999. Both children resided with us throughout their childhood and whilst they have moved out, we remain close to them.

  1. The girls' brother, BNX, who was born in 2002, was placed in care with the applicant and his wife from birth. Long term orders for him were granted on 30 January 2003. His sister BNW ceased being a ward when she turned 18 last year.

Allegations of inappropriate conduct

BNY (the niece of the applicant's wife)

  1. On 5 December 1999, BJA was charged with one count of sexual intercourse with a person 14 or over and under the age of 16 years. The complainant was his wife's niece, BNY, and the conduct in question was alleged to have occurred in 1995. Contained on file are documents comprising the police brief in this matter. In addition to a statement by the complainant there are also statements by her father, a school friend and a former teacher in relation to her complaint.

  1. After having been charged, the applicant took part in a record of interview in relation to the allegation. In the course of his interview, he provided an alibi in relation to his whereabouts at the time of the alleged offence. The charges were subsequently withdrawn on 4 October 2000.

  1. These allegations were considered in risk assessments prepared in relation to the applicant. In 2009, the following comments were provided in the carer assessment:

Serious concerns were raised with regard to BJA 's criminal history, however, further assessment completed by a DOCS Child Protection Specialist determined there was little risk posed to the children in this placement.

  1. In a risk assessment prepared in April 2009 by Sue Buchanan, Casework Specialist, Metro-West Region, she made the following findings:

The information offered by BJA has provided clarification regarding his past criminal convictions and charges. It appears that the early convictions of carnal knowledge occurred when BJA was a young, irresponsible man whose lifestyle and values have changed significantly over the years, and whilst not condoning his past offences, there is no indication that this pattern of behaviour continued beyond his early twenties. Indeed the charges of carnal knowledge laid against him in relation to his current wife would not be against today's laws.
BJA denies the 1999 charges of sexual assault that were apparently withdrawn due to a lack of supporting evidence. The Department and the Children's Court were aware of the sexual assault allegations at the time of making their orders. As a result, they suggested that the Department should continue to monitor the placement. The Department's implementation and monitoring of their strategies is unclear. Since this time, there have been no criminal charges against BJA and there have been no child protection reports in relation to the three children in his care.
In the absence of robust evidence one cannot assume innocence or guilt, or disregard the potential risk of sexual abuse to BNV or BNW, who are young, adolescent girls. The family interaction, however, demonstrated behaviour that contributes to positive relationships, such as, BNV and BNW's confidence to talk openly in front of their grandparents and BJA and BNT's warm and appropriate interaction with the girls. BNV, BNW and BNX were observed to initiate and cease physical contact with their grandfather, such as hugging, that appeared affectionate and unconstrained...Common indicators of sexual abuse, such as risk-taking behaviours, drug and alcohol abuse, anger, secrecy and social isolation were not disclosed or apparent during the assessment process.

BNW & BNX (the applicant's grandchildren)

  1. In 2012, BNW left her grandparents' home and self-placed with her mother. Care orders which had been made for BNW in 2000 placing her in the care of the applicant and his wife were rescinded on 18 June 2012 and BNW was instead placed in the legal care of her mother. Following problems with her mother, BNW returned to the care of the applicant and his wife in 2013 and completed her schooling.

  1. In April and May 2012, three calls were made to the Department of Family and Community Services in relation to BNW. It is clear that the calls were not made by BNW herself. The calls were instead made by a third party. Although the caller's identity is suppressed in the documents contained on file, from the context of the report made of the contact, it appears that the caller was BNW's mother.

  1. The caller made the following allegations in relation to the applicant's behaviour towards BNW and BNX:

  • BNW had said that the applicant had 'tried to get in the shower with me.' It was not disclosed whether BNW was alleging BJA was naked at the time or if he entered the bathroom or shower;
  • The applicant got into the shower with BNW and tried to put his fingers inside her vagina;
  • The applicant had attempted to put his fingers inside BNW's vagina whilst massaging her. When she said told him she had her period, he asked her, 'Have you got a plug up there?;
  • The applicant told BNW, 'I won't fuck you because you are my grand-daughter, but we can fool around';
  • The applicant offered money to friend of BNW's to give him a 'head job';
  • The applicant physically assaulted his grandson, BNX, by pulling chucks out of his hair, smacking, punching him and giving him bloody lips.

  1. In a Family and Community Services assessment dated 20 March 2013, it was found that the risk of harm to BNX was unsubstantiated and the future risk level was low.

  1. According to a subsequent assessment, on 2 July 2014, the Joint Investigation Response Team contacted BNW in relation to the allegations of sexual assault and asked her if she wanted to talk to them. She declined to be interviewed.

  1. On 18 and 19 December 2013, caseworkers from the Department of Family and Community Services interviewed both BJA and BNW in relation to the allegations.

  1. In his interview, BJA denied attempting to get into the shower with BNW while naked. He denied attempting to put his fingers inside BNW's vagina whilst massaging her or asking her 'Have you got a plug up there?' He told the caseworkers:

I always rub her legs after sport, she has sore legs and BNX too. I have massaged all my kids but sexually? No way.

  1. He denied ever using the word 'plug' to describe tampons. He denied getting into the shower with BNW and putting her fingers inside her vagina. He told the caseworkers he had last showered with BNW (whilst he was wearing underpants) when she was about five years old. He told the caseworkers, 'Soon as they could turn the tap on, they did not shower with me.'

  1. He denied saying to BNW, 'I won't fuck you because you are my grand-daughter, but we can fool around.' He denied ever using the words 'fuck you' around his grandchildren and denied ever assaulting BNW. He denied offering money to friend of BNW's to give him a 'head job'.

  1. In an interview with the applicant's wife, she stated that her husband had never attempted to get in the shower with BNW when he was naked.

  1. BNW was interviewed separately from her grandparents in relation to the allegations. Each allegation was put to her and she denied each of them in full. Below is an excerpt from notes taken by the caseworkers in the course of the interview:

Jacqui: I need to put the allegations to you. It is alleged that BJA (Pop) attempted to get in the shower while naked with BNW.
BNW: No
Jacqui: Was there anytime that you were in the shower with Pop?
BNW: There was a time when he told me to hurry up and get out. That was more than two years ago. I used to stay in the shower and use up all the hot water. He would turn the switchboard off.
Jacqui: On one occasion, when BNW returned home from football training, Pop gave her a massage. It is alleged that while massaging BNW, Pop attempted to put his fingers inside BNW's vagina. BNW told him to stop and advised that she had her period and was uncomfortable. Pop responded, 'have you got a plug up there?'
BNW: No. That is so wrong. My Pop does not call them plugs.
Jacqui: What name does he use?
BNW: Tampons. He picks them up from the shop for us....My mum would use those words. She would say 'rags' not your period.
Jacqui: What would she call tampons?
BNW: She would call it a plug. She told my Nan and Pop that I was pregnant. That I had eaten sausage and it blew in there. She called me a cunt, a slut and a whore even when I was living there. My Nan and Pop thought I was pregnant. Saying that about your own daughter. She has made my life hell.
Jacqui: Pop went into the shower with BNW and started to wash her body and then he put his fingers inside her vagina.
BNW: No
Jacqui: Pop said to BNW 'I won't fuck you because you are my granddaughter, but we can fool around.'
BNW: No. If a man said that to me I would be out of the house.
Jacqui: Pop offered a friend of BNW's money to give him a head job.
BNW: No
Jacqui: Pop physically assaulted BNX by pulling chucks out of his hair, smacking, punching him and giving him bloody lips.
BNW: No. Pop never does anything bad even when BNX needs to be disciplined. I hit BNX when he hit a girl. I said 'have some respect and don't hit a girl.'
Jacqui: Bloody lips?
BNW: No
Jacqui: Punching?
BNW: No
Jacqui: Smacking?
BNW: Yes, to all of us.
Jacqui: Pop hit you in relation to what?
BNW: if we were suspended from school, punched the teacher, swearing at the teacher.
Jacqui: When was the last time Pop hit BNX?
BNW: I don't remember, he has been pretty good. He is better at school, getting 'A's.

  1. According to the report subsequently prepared by the caseworkers on 2 January 2014, 'BNW was upset that she did not receive a letter outlining the allegations...and was upset that no-one spoke to her first. BNW stated that her mother "thought if Pop was sent to gaol, she (her mother, BNU) would get [custody of] BNX."'

  1. The assessment gives further details in relation to BNW's return to live with the applicant and his wife:

BNW stated that she has returned to her grandparents' home permanently. BNW disclosed that she was hoping for a 'second chance' with her mother, BNU, and this was the reason why she left her grandparents' home. She eventually returned to her grandparents' care due to her mother's lifestyle being scary. BNW [said] that her mother's drug lifestyle scares her and that both her mother and father... are drug dealers. BNW disclosed that there are guns in her parents' house and people are coming and going all the time... BNW further stated that her mother threatened to kill her and was sending her threatening messages. As a consequence, BNW said she cannot sleep or eat and is constantly worried that her mother will try to take BNX.

  1. BNW described her relationship with her grandparents since returning to live with them:

BNW said she is not as close to her grandmother as she would like. BNW admitted that she has made mistakes and that her grandmother had tried to protect her. At the age of 16, BNW felt she knew what was best and placing herself with her mother was a mistake. She says she can see that now....BNW said she has a close relationship with her Pop. She said she helps him with building things, goes fishing with him and describes him as her hero.

  1. Included in the recommendations put forward in the report are the following:

It is recommended that BNX remains in the long term care of his grandparents.
It is recommended that if a bar is received by BJA, that Community Services supports the appeal process to ensure that BNX remains in their care. Ms Menzies and Ms Richardson would be available to support BJA based on our assessment
In reviewing this case, it would be recommended that the system of addressing allegations 18 months after they are made with carers needs to be reviewed in the best [interests] of the children and the carers. Also, [that] allegations of this nature are not sent to carers in the form of a letter without prior knowledge due to the traumatic impact of the allegations. In this particular case, there had been no consideration of BJA's illiteracy, which added to the complexity of the assessment.

Departmental findings & Ombudsman's response

  1. The Reportable Conduct Unit of the Department of Family and Community Services conducted an investigation in relation to the allegations made against the applicant in relation to BNY, BNW and BNX. In a report received by the Ombudsman on 2 May 2014, the Reportable Conduct Unit of the Department of Family and Community Services found that the following allegations made against the applicant were not sustained:

  • That he had engaged in sexual misconduct with BNW by attempting to get in the shower while naked; by attempting to put his fingers inside her vagina; by entering the shower and putting his fingers inside her vagina; by stating to her 'I won't fuck you because you are my granddaughter but we can fool around' and by assaulting BNW her 'whole life';
  • That he had offered a friend of BNW's money to give him a head job;
  • That he sexually assaulted BNY in 1995 when she was 15 years old;
  • That he physically assaulted BNX by pulling chunks out of his heir, smacking, punching him and giving him bloody lips.

  1. In its subsequent review of the investigation by the Reportable Conduct Unit, the Ombudsman found that 'the investigation was well documented, and the investigation report...was of a high standard.' The Ombudsman agreed with the findings of the Unit that the allegations that the applicant had behaved inappropriately towards BNW could not be sustained nor could the allegation that the applicant had offered a friend of BNW money to give him a head job.

  1. The Ombudsman was not satisfied that the Unit had access to sufficient evidence to enable it to make a finding in relation to the allegation that the applicant had sexually assaulted BNY. Similarly, the Ombudsman was not satisfied that the Unit was in a position to make a finding that the allegation in relation to BNX was not sustained.

Psychological report

  1. A comprehensive psychological report dated 11 September 2014 by Dr Christopher Lennings for BJA is before the Tribunal. In his capacity as a clinical psychologist, Dr Lennings has been a member of the Children's Court Clinic panel until 2010 and an accredited counsellor under the Commission for Children and Young People's accreditation scheme for working with sexual abusers. He is also a member of the Australian and New Zealand Association for the Treatment of Sex Abusers and former editor of the journal Sexual Abuse in Australia and New Zealand.

  1. In his report, Dr Lennings considers the allegations of sexual assault against BNW and notes:

In an..interview with BNW by [the Department of Community Services] when BNW was in the care of her mother (after having self-relocated to Sydney) BNW gave as her reasons for leaving the care of her grandparents, conflict with her grandmother and general conflict in the house. At no point did she appear to have made any allegations in regards to inappropriate behaviour by BJA, despite having the opportunity to do so, particularly when she was interviewed in the company of her mother in Sydney in 2012.

  1. In relation to the care history of the three grandchildren, Dr Lennings writes:

BNV has been for most of her life in the care of BJA and BNT. BNW came into their care when she was about three and a half and BNX was removed at birth and placed in their care. BJA said he was given an ultimatum by the Department of Community Services that he either care for BNX or that BNX would be put into foster care. This was despite that in so doing he was placing significant burden on the family financially and emotionally because of the ongoing dispute, battles and arguments between themselves and [his daughter] who appeared to have continually sought the return of her children.

  1. In his psychological assessment for BJA, Dr Lennings discounted the 2012 allegations in relation to the alleged sexual assault of BNW and the physical assault of BNX as vexatious. He did, however, consider the allegations made by BNY in relation to an alleged sexual assault in 1995.

  1. On the basis of the evidence before him (excluding the allegations in relation to the sexual assault of BNW and the physical assault of BNX) Dr Lennings gave a total score of 3 for BJA on the STATIC 99 Actuarial Assessment which translates to a moderate-low risk. According to Dr Lennings:

The norms for the Static 99 distinguish between a routine group and a more avowedly dangerous and anti-social group (high risk) group. A score of 3 translates to meaning that, over a 10 year period, for every 100 offenders in the routine group 6 would go on to re offend, whilst 23 would do so for the high risk group. Given the absence of anti-social behaviour since 1976, it seems more appropriate to consider BJA's risk as falling into the routine group.

  1. Dr Lennings undertook a dynamic risk assessment with the RSVP test, which requires that a number of dynamic risk factors be considered in the applicant's assessment. In the applicant's, Dr Lennings found the following protective factors (i.e. against risk):

  • age
  • no apparent mental illness issues
  • no apparent substance abuse problems
  • no evidence of personality disorder
  • stable employment
  • good circle of friends
  • solid relationship
  • good psychosocial stability
  • no apparent anti-social attitudes or idea
  • not a violent person

  1. In making this findings Dr Lennings made the assumption that 'whilst psychological coercion was part and parcel of [the applicant's] sexual behaviour in the 1960s and early 1970s, such features of his behaviour now appear to be absent. Factors that are suggestive of risk are fundamentally historical factors.'

  1. In light of the pattern of dynamic risk factors, Dr Lennings found that the STATIC 99 Actuarial Assessment could be moderated down to low risk on the basis of the absence of any significant dynamic risk factors for the applicant. In this regard, Dr Lennings made the following findings:

Consequently it is regarded that BJA represents a low risk of sexual harm to young people. If a risk was to be entertained the risk might be towards young teenage girls although given the length of time that has passed since such behaviour was evidence in BJA's manner such a scenario is most unlikely. There appears to be no obvious indicators of any risk of harm towards [his grandson BNX].

  1. In his conclusions, Dr Lennings made the following formulation:

BJA presents as a man entering old age who for a period in his late adolescence and early twenties lived a reckless and hedonistic life. As a consequence of his fronting a rock and roll band...he was charged and convicted of 2 carnal knowledge charges. His criminal record ends in 1976 and he describes an ultimatum from his wife to either settle down or move out, he choosing to settle down. He seems to have lived a prosocial life since that time. There are no obvious risk indicators in his behaviour. He presents as a hard-headed man with no obvious psychopathology. He remains committed to his family and the care of his grandchildren despite obvious financial and emotional cost in so doing. Despite what appear to be vexatious allegations made about his behaviour towards one granddaughter, BNW, there seems no basis for placing any weight upon those allegations.
The most troubling aspect of the assessment is the 1995 allegation of rape of BNY. There remains no testing of this allegation. An issue arises as to what weight to place on an allegation that appears to have been substantiated at the time (police preferred charges) but then was withdrawn from prosecutions, ostensibly due to contradictions in the evidence. It seems hard, at this point, to place much weight about it. Despite his behaviour in his teenage and early twenties years, the rape allegation represents a considerable out of character act for BJA, if it were to be true. There is no evidence he was hypersexual, had maintained aberrant attitudes towards sex with young people or had sought to groom the victim. Overall, it is considered that BJA's risk to young people is low, it being noted that once convicted of a sexual offence, it is not possible to go below a low risk conclusion on formal risk assessment. That is, risk can never be zero.
I am aware that a criterion under which the current issue was considered is not specific risk of harm to any one child but rather risk of harm to children in general and that may include not only sexual harm risk but also general child protection risk. Concerns have been raised at times about general child protection risk for BJA, but it appears in a vexatious manner without general child protection risks being obvious. The number of assessments and overview of this matter undertaken by Department of Community Services suggests that there is no general child protection risk on the part of BJA, or, indeed, of his wife.
The only other concern that might exist then is whether there is a particular risk in relation to sexualised behaviour towards young (teenage) girls. This appears to be absent in the current assessment. As a consequence it is considered that BJA does not represent a risk to young people in the community and in particular does not represent a risk to children in his care.

  1. Dr Lennings attended the Tribunal to give evidence. When cross-examined about the allegations of physical assault by the applicant against his grandson, BNX, Dr Lennings retained his opinion that, in his view, the allegations had not been substantiated.

  1. In explaining his findings in relation to dynamic risk factors, Dr Lennings confirmed that he had considered the applicant's criminal record in its entirety and advised that to be considered a high risk, there would need to be evidence of recent offences and sexualised behaviour. In considering the early offence, Dr Lennings confirmed the importance of the applicant's lifestyle change at age 25. He denied that the applicant had minimised his offending behaviour in relation to the early offences. There was no evidence he had been dishonest and any small discrepancies did not change his view in relation to his risk assessment of the applicant.

Witness evidence

BJA

  1. The applicant provided a lengthy affidavit in support of his application.

  1. In his affidavit he confirmed that he had received a good behaviour bond following his conviction for the carnal knowledge of BNT who he married in 1970 and to whom he remains married. He stated that the offence is not a disabling offence as he was a juvenile at the time.

  1. In relation to the index offence, he declared that:

In 1973, I acknowledge that I was charged with a further offence of carnal knowledge. The victim become pregnant and gave birth when she was over the age of 16 years. At the time, I was playing in a pop band...I was about 22 years of age. I do not have any direct memory of having sex with this girl, however, I accepted responsibility and pleaded guilty.

  1. He confirmed that his granddaughters BNV and BNW were placed in his care in1999 and that the girls remain close. In relation to BNW, BJA writes:

BNW only lives approximately ten minutes away by car. She is currently working with me on a regular basis in the building industry. She is currently an apprentice plasterer. She is a very outdoor girl and represents Queensland [for sport].

  1. In relation to his daughter, BNU, he writes:

Concerning the allegations regarding BNW, I recall that her mother moved up to Queensland and got a small unit... in 2011 and for a period of time was flying back and forwards to Sydney. For a period of time BNW's behaviour deteriorated. There were problems between BNW and her sister BNV. She didn't enjoy school and there were suspensions. During this time I was working long hours and most Saturdays and was also building our new home.
I acknowledge at this time as a consequence of all that I was doing, most of the care and discipline was left up to [my wife]. Arrangements had been made with FACS at Auburn for BNW to go and stay with her mother however, by the end of July 2012, BNW was calling and asking if she could return home as she couldn't deal with her mother or her husband. She complained that drug dealing and drug use was a constant in the home. [My wife ] and I flew her home in August 2012 with the stipulation that she returned to school and improve her behaviour. We were assisted by the.. Child Protection Office and a psychologist who undertook some counselling directly with BNW. Later BNW graduated from..school. She specifically denied that she had said anything herself about me and stated that it was her mother who told the Department all the stories of alleged abuse.

  1. In relation to the allegations that he has sexually assaulted his wife's niece in 1995, when the girl was 15 years old, he states:

I strongly deny that I ever assaulted BNY. I understand that the police withdrew the charges because of inconsistencies between the statement given by BNY and others. She was a troubled girl who had a difficult upbringing.

  1. BJA advised that in addition to being required to complete a NSW working with children clearance check, he has also been asked to obtain the equivalent check for Queensland, 'the blue card.' He was told that he needed to submit this because he was caring for his grandson BNX in Queensland.

  1. In oral evidence before the Tribunal, when asked about the circumstances of the index offence, the applicant said, 'I was an idiot and, believe me I'm paying for it.'

  1. In relation to the allegations that he had sexually assaulted BNW, he said he couldn't believe it, he didn't know where the allegations came from and that he has no answer to them.

BNT (the applicant's wife)

  1. The applicant's wife, BNT, provided an affidavit to the Tribunal. She attended the Tribunal hearing and stated that she was available for cross-examination. Ms Hartstein, for the Children's Guardian advised the Tribunal that she did not wish to cross-examine her.

  1. In her affidavit sworn 3 June 2014, BNT confirmed that she had been married to BJA since 10 June 1970.

  1. In relation to the allegations that the applicant had physically assaulted BNX she states:

BJA is an excellent father figure for BNX and it is my observation that they each love spending time with each other. I have never observed BJA to do anything which might cause BNX to be at risk

  1. In relation to the allegations that her husband had sexually assaulted her niece, she stated:

I recall BNY was a girl with a lot of problems. At one stage she was sent to live with her father as she was reported to be out of control and her mother was concerned about her influence on her two younger siblings. I also recall that her mother had a partner and he was also the subject of allegations by BNY although they were never taken to the police. [BNY's mother] told me this when I contacted her regarding the allegations made against BJA . I specifically remember her saying to me that she did not believe one word regarding the allegations made about BJA. I recall that the police drove up to the Central Court to talk to BNY's mother about her daughter's allegations.
I also recall that BNY made allegations against my nephew some years earlier, when he was about eleven or twelve, that he had inserted ping pong balls into her vagina. I clearly remember her stating this to me in the car and I remember at the time telling her that I did not believe her.
Sometime later, I remember BNY making enquiries about our daughter BNU. I specifically warned her to stay away from BNU because of her heroin addiction. She ignored my advice.
I remember that I had not seen BNY for a number of years as she left living with her father and began getting in to drugs and hanging around with the wrong type of people. I heard nothing for some time until my brother rang me one afternoon saying he wanted to talk to me about BNY....I remember him relating to me the accusation concerning BJA and all the time she was sitting behind my brother on the arm of the sofa with a big smile on her face.
Later my brother was diagnosed with a brain tumour and I did all that I could to help him before he died.
In 1999 I recall there was a big falling out between BNY and [my daughter], which apparently involved drugs.
During the course of my brother's illness, his middle daughter visited us from NSW so that she could see her father. She stayed with BJA and me in our house. I specifically recall her coming to BJA and me and saying 'I apologise for what BNY did to BJA . She told me it never happened. That she saw a happy family and wanted to make trouble.' I remember thanking her for telling me that, but that it was not her place to apologise.

BNW (the applicant's granddaughter)

  1. In an affidavit sworn on 16 September 2014, BNW confirms that she is the maternal granddaughter of the applicant and states that:

I have read the allegations that I supposedly made and these aren't true in any way shape or form. These allegations were made by...my mother..and any signatures, if any, would have been falsified by [my mother]. I have witnessed her falsify signatures before. She wanted to discredit my grandfather so that she could apply to the court for custody of my brother BNX.
I am prepared to give evidence before the tribunal regarding all so called allegations made about my grandfather.
I lived in Sydney with [my mother] for 4 months during which time I witnessed heavy drug use and drug dealing from within her unit. Both [my mother] and her partner punched me and life was hell. I returned to live with my grandparents in Queensland. [My mother] is a drug user who will go to any lengths to get what she wants. I am distraught and embarrassed that she has said these things about my grandfather and made it seem that I said them. She is not credible and she is a liar.

  1. Ms Hartstein for the Children's Guardian told the Tribunal that she did not require BNW for cross-examination.

FINDINGS AND REASONS

  1. The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by

(a)   not permitting certain persons to engage in child related work; and

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

  1. 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.

  1. For the purposes of this application, the relevant section is subsection 28 (1) of the Act, which makes provision for applications for an enabling order. Subsection 28(7) provides that where an application for an enabling order is made, "it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of the children." That is, in this application, the onus is on the applicant to prove, on the balance of probabilities, that he does not pose a risk to children.

  1. 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 paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant:

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."

  1. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the (now repealed) Commission for Children and Young People Act 1998 to have the same meaning. The Tribunal is of the view that the same meaning applies to the word "risk", as it appears in the current Act.

  1. Subsection 30(1) of the Act, sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application made under s 28(1).

(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.

  1. On 3 April 1973, the applicant pleaded guilty to the offence of assault female under the age of 16 years with act of indecency (carnal knowledge). He was bound over to be of good behaviour for 2 years under the supervision of probation and parole.

  1. At the time of the offence, the applicant was 22 years old and a member of a rock band. In his affidavit, he states that he does not have any direct memory of having sex with the victim but accepted responsibility and pleaded guilty to the offence. He described this time in his life as being when he was consuming a lot of alcohol. He no longer drinks alcohol at all.

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

  1. The index offence was committed in 1972 or 1973 which is now more than 40 years ago. Following the offence, the applicant was convicted on one count of conspiracy (in relation to an insurance fraud proposed by a friend of his) and one count of receiving. For each offence he was placed on a recognizance. His last conviction was in 1976. In the opinion of Dr Lennings, the applicant has a low risk of reoffending.

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

  1. At the time of the index offence, the applicant was 22 or 23 years old.

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

  1. The victim was born on 26 November 1955. The applicant was arrested after the victim gave birth to a child on 3 August 1972. She was sixteen years old when she gave birth to the child. Other than her age, there is no evidence of further vulnerability of the girl at the time.

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

  1. The applicant was just under six years older that the victim. There was no relationship between the victim and the applicant.

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

  1. The applicant states that he does not remember having sex with the victim. He did, however, accept responsibility for the offence and pleaded guilty to one count of indecently assaulting a female under the age of 16 years.

(g) the person's present age

  1. The applicant is now 64 years of age.

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

  1. Before the index offence, the applicant had a conviction for carnal knowledge when he was a juvenile. Since the index offence, he has been convicted of one charge of conspiracy in 1974 and one count of receiving in 1976. Although these offences were not dealt with in the applicant's affidavit or evidence, in his report, Dr Lennings details the applicant's explanation for the conspiracy offence. A friend of the applicant had attempted an insurance fraud on his car. Although the applicant stated that he would not be involved in the fraud, he did, however, provide his friend with the names of people who might assist him. It was this advice that apparently provided the factual basis for the conspiracy charge. The respondent did not cross-examine the applicant in relation to this account and the Tribunal accepts the narrative contained in Dr Lennings' report in relation to the circumstances leading to the applicant's conviction this matter. For the conspiracy offence, he was placed on a bond to be of good behaviour for a period of three years and for the receiving offence, he received a fine. Given the small penalty imposed and the fact that these offences occurred close to 40 years ago, the Tribunal has given them little weight.

  1. Since 1976, the applicant has not been convicted of any further offences nor has he been the subject of any application for an apprehended violence order or restraining order.

  1. In 1999, the applicant was charged with the sexual assault of his wife's niece, who at the time of the alleged offence was 15 years old. This charge was later withdrawn. The allegations were serious and the Tribunal is not in the position to make a finding as to their veracity.

  1. In considering what, if any, weight to be given to the allegations, the Tribunal had taken into account the following:

  • the brief of evidence in the matter;
  • the fact that when charged with the offence, the applicant agreed to participate in a record of interview in which he denied the allegations;
  • the fact that the charges were withdrawn and that the evidence of the complainant and the other people who made statements in the matter has been unable to be tested;
  • the 2014 findings of the Reportable Conduct Unit following its investigation in the matter that the allegation that the applicant had sexually assaulted the complainant, BNY, in 1995 when she was fifteen years old could not be sustained;
  • the review of the above findings of the Reportable Conduct Unit by the Ombudsman. In its review, the Ombudsman stated that there was not sufficient evidence in this matter for a finding to be made. In particular, the Ombudsman wrote:
We note that the investigator did not have access to all relevant police records in relation to the matter - in particular, records pertaining to BNY's reported retraction were not amongst those considered by the investigator. There is also no evidence that the investigator considered interviewing BNY or her best friend in relation to the allegation. In the absence of more fulsome Police records, or an account from BNY and relevant witnesses, we are of the view that the [Reportable Conduct Unit] has insufficient evidence to return a finding in relation to this allegation.
  • The statement by the applicant in his affidavit providing an alibi in relation to the allegations. The applicant's statement was not disputed by the respondent, nor was he cross-examined on it.
  • The information put forward by the applicant's wife in her affidavit detailing inconsistencies between the statements that formed part of the police brief in the matter. The Tribunal has also taken into account her statement that the sister of the complainant had apologized to her for the complainant's behaviour and said that the complaint told her that '[the allegations] never happened...that she saw a happy family and wanted to make trouble.' The Tribunal has further considered statements by the applicant's wife that the complainant had made several complaints against other people of inappropriate sexual conduct towards her. The Tribunal notes that no objection was taken to the affidavit by the applicant's wife nor was she required for cross-examination by the respondent.

  1. Having considered all the evidence before it, the Tribunal is of the view that it would not be appropriate to disregard the allegations in relation to BNY. In light of the withdrawal of the charges, however, the inconsistencies in the statements, the evidence of the applicant's wife, the record of interview of the applicant, the findings of the Reportable Conduct Unit and the comments of the Ombudsman, the Tribunal has given the allegations little weight.

  1. In 2012, information was provided to the Department of Family and Community Services alleged that the applicant had behaved inappropriately towards his granddaughter BNW. The allegations, which included that he had digitally penetrated her, are set out in detail above.

  1. On the evidence before it, the Tribunal finds that the allegations were made by a third party and that when BNW was approached by the Joint Investigation Response Team in July 2014, she refused to be interviewed. The Tribunal notes that in a later interview with caseworkers in December 2014, BNW denied each of the allegations and expressed her anger at not have been informed of them at the time. The applicant's elder granddaughter, BNV, blames her mother for the allegations and believes she made the allegations in an attempt to provide evidence that her brother, BNX, was at risk at his grandparents' house.

  1. Although there are no medical records for the applicant's daughter, BNU, before the Tribunal, it appears that she has a long history of drug use and erratic behaviour. In care proceedings in the Children's Court on 2000, the magistrate referred to a report from Cumberland Hospital from 1998 in which BNU was diagnosed as a person with a personality disorder, heroin dependence and diazepam dependence. Notes in the various assessment reports put before the Tribunal indicate that BNU continues to have problems with drug use.

  1. Although both BNW and the applicant's wife were available at the Tribunal hearing, the respondent required neither of them for cross-examination. On this basis, the Tribunal has assumed that there was nothing in either of their affidavits the respondent wished to challenge. For this reason, the Tribunal has given weight to the affidavits as a means of explaining the circumstances behind the allegations made against BJA in relation to BNW.

  1. The Tribunal has considered the evidence provided by the applicant, his wife and their granddaughter, BNW, in combination with the findings of the Reportable Conduct Unit, as upheld by the Ombudsman, that the allegations made against the applicant in relation to BNW cannot be sustained. In light of the all the evidence before it, the Tribunal has given no weight to the allegations.

  1. In considering the allegations against the applicant that he 'physically assaulted his grandson, BNX, by pulling chunks out of his hair, smacking, punching him and giving him bloody lips', the Tribunal has taken into account the following information:

  • the affidavit by BNW, uncontested by the respondent, that the allegations supposedly made by her were untrue and made by her mother to gain custody of BNX;
  • the affidavit by the applicant's wife that her husband is an excellent father figure to BNX and has never observed him to do anything to cause BNX to be at risk;
  • the interview between BNW and caseworkers from the Department of Family and Community Services which took place in December 2013 in which BNW states that while the applicant would slap all the children on occasion, she never saw him physically assault BNX by pulling chunks out of his hair or punching him or giving him bloody lips;
  • the Ombudsman's comments that although the Joint Task Force did not have the evidence to make the finding that the allegations in relation to the physical assault of BNX were unsustained, a review of the finding was not required; and
  • the recommendations contained in the 2014 assessment by caseworkers of the Department of Family and Community Services that BNX remain in the long term care of the applicant and his wife.

  1. In light of the above, the Tribunal finds that on occasion the applicant would discipline BNX by smacking him. The Tribunal is not satisfied that the applicant's corporal punishment of BNX went beyond this. The Tribunal accepts that any hitting of children in the care of the Minister is not be condoned. In light of the evidence, however, the Tribunal is not of the view that BNX is at risk from the applicant. Accordingly, the Tribunal has given limited weight to the allegations that he physically assaulted BNX.

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

  1. In light of the Static 99 results for the applicant as considered in combination with the dynamic risk factors, it is Dr Lennings' view that the applicant represents a low risk of sexual harm to young people. In his conclusion, Dr Lennings found that the applicant does not represent a risk to young people in the community and in particular does not represent a risk to children in his care.

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

  1. The Tribunal does not accept the submissions of the respondent that the applicant has tended to minimise the disqualifying offence. In cross-examination he did not deny the offence, calling himself an 'idiot' for it and noting that he continues to pay the price for his conduct.

  1. The applicant has consistently denied the allegations against him in relation to BNY and his grandchildren, BNW and BNX.

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

  1. The two issues raised in the respondent's submission in relation to this consideration have been dealt with earlier in the judgment. The allegations made against the applicant in relation to BNY and BNX have been considered in detail and given some weight in the Tribunal's decision. In light of the evidence of applicant, his wife and his granddaughter, BNW, in combination with assessments for the family conducted by Departmental caseworkers, the allegations against the applicant in relation to BNW have been given no weight. The Tribunal draws no adverse conclusion from the fact that these allegations were apparently not raised in the Tribunal during the stay proceedings for this matter.

  1. The requirement that the applicant have a working with children clearance check under s8 of the Child Protection (Working with Children)Act, despite the fact that neither he nor the child he is caring for live in NSW, has been considered above as part of the jurisdictional issues raised by the applicant.

CONCLUSIONS

  1. Having regard to all these factors, the Tribunal is satisfied that the applicant has discharged his onus, as required under subsection 28(7) of the Act, and has displaced the presumption that he poses a risk to the safety of children.

  1. The reasons for this finding are as follows:

  • According to Dr Lennings, the applicant's risk of recidivism is low. The fact that he is over 60 years old further decreases his risk of recidivism;
  • The index offence occurred over 40 years ago and the applicant's criminal conviction was in 1976;
  • In light of the withdrawal of the charges, the affidavit evidence provided by the applicant and his wife and the inconsistencies in the statements relevant to the allegations, the Tribunal has given little weight to the allegations that he sexually assaulted his wife's niece in 1995;
  • In light of the evidence provided by the applicant, his wife and his granddaughter, BNW, in combination with the findings of the Reportable Conduct Unit, as upheld by the Ombudsman, the Tribunal has given no weight to the allegations that the applicant sexually assaulted and was sexually inappropriate towards his granddaughter, BNW;
  • In light of the evidence provided by the applicant's wife and BNW in addition to the findings of the Ombudsman in relation to the Joint Task Force review and the positive report dated 2 January 2014 by caseworkers of the Department of Family and Community Services, the Tribunal has accorded limited weight to the allegations that the applicant physically assaulted his grandson, BNX;
  • The Tribunal's findings in relation to the applicant's care of BNX and its view that the applicant does not pose a risk to children generally have been fortified by the report dated 2 January 2014 by caseworkers from the Department of Family and Community Services in which they observed BNX to be a happy, healthy child with secure attachments to the applicant and recommended not only that he remain in the long term care of the applicant and his wife but that if a bar were to be received by the applicant, that he and his wife be supported through the appeal process to ensure that BNX remains in their care.

ORDERS

(1) The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offence of carnal knowledge for which he was convicted on 3 November 1972

(2) Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the Applicant a Working with Children Check Clearance.

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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

Decision last updated: 07 November 2014

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