BJD v Office of the Children's Guardian - [2014] NSWCATAD 167

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BJD v Office of the Children's Guardian [2014] NSWCATAD 167
Hearing dates: 13 August 2014
Decision date: 08 October 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: R Booby, Senior Member
Decision:
The applicant's application is refused

Catchwords: ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - disqualifying offence occurred in 1989- by reason of offence presumed to be a risk to children - whether applicant has discharged his onus to establish the contrary
Legislation Cited: Child Protection (Working with Children) Act 2012
Crimes Act 1900
Criminal Code Act 1899 Qld
Child Protection (Prohibited Employment) Act 1998
Commission for Children and Young People Act 1998
Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: BJD (Applicant)
Office of the Children's Guardian (Respondent)
Representation: Counsel
Mr Harris
Legal Aid (Applicant)
Crown Solicitor (Respondent)

File Number(s): 1410291
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

reasons for decision

Introduction

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 section 6 of the Act.

The applicant wishes to be permitted to be able to care for his grandchildren who had been placed in the care of him and his wife.

Subsection 6(3)(c) of the Act provides that an authorised carer of children is required to have a working with children clearance.

Subsection 10 (1) of the Act provides that an adult person who resides at the home of an authorised carer is required to have a working with children check clearance.

Subsection 18(1)(a) of the Act establishes that where a person is convicted of an offence specified in Schedule 2 of the Act, that person is a disqualified person, to whom the Children's Guardian must not grant a working with children clearance.

Schedule 2 of the Act lists an offence under s.61(E) of the Crimes Act 1900 and also lists as disqualifying offences those committed under the law other than a law of New South Wales that, if committed in New South Wales would be an offence listed under the schedule.

The following offences bring the applicant within subsection 18(1) of the Act:

(1) Indecent assault on female under 16 years of age (s. 61E(2) Crimes Act 1900 NSW of which he was convicted at Cowra Court of Quarter Sessions on 25 October 1971.

(2) Aggravated assault on a female child (s.344 Criminal Code Act 1899 Qld) of which he was convicted at the Mackay Magistrates Court on 1 April 1975

(3) Aggravated assault (s.344 Criminal Code Act 1899 Qld) of which he was convicted on 9 December 1975.

The offences of aggravated assault on a female child and aggravated assault, (as described in the Police Facts in relation to that matter), would be offences that if, committed in New South Wales would be offences listed under the Schedule to the Act.

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 21 January 2014.

The application seeking an enabling order is dated 22 April 2014 and the applicant states that the reason for the late application was the unavailability of legal aid. There was no objection to the late application and the Tribunal decided to hear the matter despite the late application.

On 19 June 2014 the Tribunal refused an application by the applicant seeking a stay of the operation of the determination of the Children's Guardian refusing a working with children clearance and issued directions regarding the filing of documents.

There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant's application.

The hearing on 13 August 2014 was conducted in person at the Tamworth Court House but Dr Christopher Lennings participated by telephone with consent.

Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication of information about 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.

RELEVANT PROVISIONS OF THE ACT

The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearances.

Section 4 of the Act provides that the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act.

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(5) provides that the applicant must fully disclose to the Tribunal any matters relevant to the applicant.

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.

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."

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.

Subsection 30(1) of the Child Protection (Working with Children) Act, sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application:

(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.

Evidence

The applicant tendered into evidence without objection a bundle of documents comprising:

Notice of Disqualification for Working with Children Clearance dated 21 January 2014
Application dated 22 April 2014 seeking a stay of the decision of the Children's Guardian.
Application dated 22 April 2014 seeking a review of the decision of the Children's Guardian.
Letter from Legal Aid referring Mrs BJD for legal advice.
Report of Dr Christopher Lennings dated 28 July 2014
Affidavit of BJD dated 4 August 2014
Affidavit of Mrs BJD dated 4 August 2014
References in support of BJD.

The applicant, the wife of the applicant and Dr Lennings each also gave sworn oral evidence by way of cross-examination by counsel for the respondent and re-examination during the course of the hearing.

The respondent tendered into evidence without objection a bundle of documents tabbed 1 through to 15, which, adopting the tab numbering are:

(1) Application for Enabling order dated 6 June 2014

(2) Application for Stay or Interim Order dated 22 April 2014

(3) Criminal History provided by Crimtrac dated 23 January 2014

(4) Information provided by NSW Police of various dates

(5) Information provided by NSW Courts of various dates

(6) Information provided by FaCS dated 31 July 2014, 12 August 2014 and various other dates

(7) Notice of disqualification dated 21 January 2014

(8) Letter to the applicant dated 20 June 2014

(9) Letter to the applicant dated 25 June 2014

(10) Letter received from the applicant including 6 references

(11) Letter received from the applicant dated 11 July 2014

(12) Email to the applicant's solicitor dated 22 July 2014

(13) Email from the applicant's solicitor dated 23 July 2014

(14) Email to applicant's solicitor dated 28 July 2014

(15) Email from the applicant's solicitor dated 29 July 2014

The respondent also tendered, without objection:

(1) A bundle of documents comprising:

(a) A document provided by Crimtrac

(b) Information from the NSW Police

The documents at 1(a) and 1(b) above the same as the documents provided at Tabs (3), (4) and (5) above.

The respondent also tendered, without objection, Static 99 Coding Rules Revised - 2003

In the following paragraphs I deal with the evidence relevant to the factors set out in subs 30(1) of the Act.

Consideration

The seriousness of the offences with respect to which the person is a disqualified person.

The NSW Police Incident Report regarding the offence of Indecent assault on female under 16 years of age of which BJD was convicted at Cowra Court of Quarter Sessions on 25 October 1971 states that BJD was living in house with the child victim, her mother, her mother's brother, her mother's partner and an aunt of the victim. The sleeping arrangements were that the victim's mother and her partner slept in a double bed. The victim slept on a lounge chair and BJD and the other male slept in the bottom of a bunk bed and the aunt in the top bunk. During the evening of 27 August 1971 when the other occupants of the house were asleep, BJD removed the victim's pyjamas and panties while she was asleep and put his finger in her vagina. She awoke and told her mother.

The Crimtrac record tendered by the respondent indicates that on 25 October 1971 at Cowra Quarter sessions, BJD was sentenced to 8 months hard labour in respect of this offence.

In his affidavit dated 4 August 2014, BJD makes statements to the following effect regarding this offence:

He travelled to the country town in which he was living with a friend and the friend's partner and daughter. The four of them lived in the house.
He had wanted to sleep on the settee but the girl's mother said he should sleep with her daughter, which he did for six months without issue.
The girl's mother tried on several occasions to have sex with him but he refused because she was the partner of his friend.
One night he was woken in the middle of the night by the girl's mother who asked if he had touched her daughter.
He was unsure of what was going on, as he had been asleep.
He might have accidentally touched the girl while he was sleeping.
The mother did not seem too concerned and after the incident he continued to stay in the house and slept in the same bed as the girl for a few more nights.
Approximately three weeks later he was approached by the police who said that the mother had made an allegation that he had touched her daughter.
The police showed him some paperwork and asked if what was on there was his background. He cannot recall what the paper work showed.
He was charged but does not remember what the police charge sheet said. He does remember that the police conducted an interview.
He was convicted and served between 6 and 18 months in gaol. He did not have a lawyer and did not realise he could get legal advice.
Had he known or been advised that he had to knowingly touch the girl to be guilty of the offence he would not have pleaded guilty.
He clearly remembers that he did not intentionally touch the girl.

During cross examination BJD gave the following further evidence in respect of this matter:

(1) In respect of the age of the victim:

BJD said that he does not know the age of the victim, but the police said that she was 10 years old.
Counsel for the respondent noted that the NSW Police Incident Report records the victim as being under 10 years of age at the time.

(2) In respect of BJD's recollection of the event he said words to the effect of:

All he recalls is that he might have accidentally touched the victim.
He accepts that it is not possible to remove the panties from a victim and insert a finger into her vagina whilst he was asleep, but denies that he did those actions.
He agrees with the statement in the report of Dr Lennings that he had an alcohol problem at that time of the offence but denies the possibility that he might have committed the offence as described whilst drunk.

(3) In respect of sentencing for the matter, under cross-examination BJD said that he is guessing that he pleaded guilty and that he does not recall a trial. When re-examined on this matter he said that he believes he was not in court for more than one hour in relation to the matter.

The Police Incident Report in respect of this incident appear to have originally recorded the age of the victim as "under 16 years of age" and then to have altered the entry to "under 10 years of age". As noted above, the applicant said in cross-examination that the police said that she was 10 years old. There was no issue raised by the solicitor for the applicant regarding the age of the victim or the alteration in the Police Facts that appear to vary the age stated from under 16 years to under 10 years.

The Queensland Police Department Summary of Facts and Antecedents of Defendant tendered by the Respondent contains statements to the following effect regarding the offence of aggravated assault on a female child of which BJD was convicted at the Mackay Magistrates Court on 1 April 1975:

The victim of the assault was a 5 year old girl who was living with her parents in a caravan park where BJD was also living.
On 28 March 1975 two women informed the mother of the child that they had located the child in a caravan with a man who was dressing himself by pulling on his shorts and at the same time he was observed to be replacing the girl's pants.
The girl told her mother that the man had taken off her pants whilst she lay on the bed. He was on the bed with no pants on and he got on top of her and she felt something rubbing between her legs. The mother examined her daughter and found reddening between her legs and "close to her private (sic)" and there were a number of hairs "around her private (sic)".
The police attended the caravan park and located BJD in a caravan where he had been detained by other residents.
When questioned by police BJD admitted he had removed the child's pants and placed his penis between her legs as she lay on the bed. He said that he had been in the caravan on the bed with no clothes on and the child had entered the caravan at his request. He invited the child onto the bed and felt an uncontrollable urge to have sex with the child. He lay on top of the girl and put his penis between her legs and moved up and down. He did not attempt to insert his penis into the girl but masturbated by rubbing his penis between her legs. He said that he realised he was doing the wrong thing and started to dress himself and the girl when he was discovered by other residents in the caravan park. He said that he did not intend to hurt the child
The police expressed the view that there is no doubt that a more serious offence may have been committed but for the timely arrival of the other residents.

The Crimtrac record tendered by the respondents indicates that BJD was convicted of this offence at the Mackay Magistrate's Court on 1 April 1975 and was sentenced to 9 months hard labour.

In his affidavit dated 4 August 2014 BJD makes statements to the following effect regarding this offence:

He was living in the caravan park and was drinking about 12 beers a day. He was working at an abattoir, was happy and thought that he had put "the issues of the past" behind him.
He was having drinks with others when the young girl said she wanted to look at comic books. He said he had some comic books in the caravan and she could come to the caravan later and get the books.
He went back to the caravan and fell asleep and was woken by the girl's father who was in his caravan yelling at him, wanting to know what was going on. The father said that the girl had been found naked in his caravan by a friend.
He does not remember the girl coming into the van. She must have done so while he was asleep. He is "positive" that he "did not remove the girl's clothing" and "did not ask her to do so" (affidavit paragraph 42).
He was arrested and charged. He cannot remember what the police said he had done.
He did not have a lawyer and did not get legal advice and did not know that he was entitled to do so. He was found guilty and spent approximately 6 months in custody in Townsville prison.
If someone had told him that he had to have done something to be guilty of an offence he would not have pleaded guilty.

Under cross examination BJD made further statements about this matter to the following effect:

(1) He came to know a number of people in the caravan park, not just the parents of the victim. He believes that the victim was an only child.

(2) He stands by his statement in his affidavit that he did not remove the victim's clothes.

(3) He does not have a clear recollection of the events. He does not remember the day or the challenge by the father. When counsel for the respondent referred to BJD's statements in his affidavit and noted that BJD provides details in the affidavit about the circumstances around the offence BJD said that what he remembers is that there was a lot of drinking, he told the victim to come to his caravan later, he went back to the caravan and fell asleep. He said that that is all he can remember until the girl's father woke him up.

(4) Counsel for the respondent referred to a statement made by Dr Lennings in his report that BJD had engaged in "grooming behaviour" in respect of the victim and asked whether BJD had used a "ruse" to get the girl into his caravan. BJD denied this assertion.

(5) Counsel for the respondent asked BJD if the reason he got the girl into the caravan was to have sex and BJD denied this. He said he just invited her to get comics to help her and not to have sex.

(6) He does not recall pleading guilty to the offence.

(7) He does not recall the events as described in the police facts regarding other people coming to the caravan and finding him dressing himself and the victim and denies the events because he has no recollection of them.

(8) In relation to the statement in the police facts that he masturbated against the legs of the victim, he said he does not know anything about that.

(9) He does not recall saying that he had an uncontrollable urge to have sex with the girl, or saying to police that he knew that what he had done was wrong.

(10) When asked whether it is likely that something happened, BJD said that he did not remember.

(11) When counsel for the respondent asserted that the police summary of facts suggests that BJD gave them an account of the offence, BJD said that he did not recall any of that.

(12) When asked if he would accept that the account given by police was likely to be correct, BJD said that he didn't know.

(13) BJD said that he did not know the age of the victim, but accepts that police statement that she was 5 years old.

The Queensland Police Department Summary of Facts and Antecedents of Defendant tendered by the Respondent contains statements to the following effect regarding the offence of aggravated assault of which BJD was convicted on 9 December 1975.

At about 4:10 am on 9 December 1975 the 23-year-old female was woken by BJD who placed one hand on her mouth and the other on her left breast. A struggle ensued and the female broke free and called for assistance from another occupant of the flat in which she lived.
BJD went to the top of the staircase of the flat at the same time as the other occupant. At this time BJD was wearing only underpants.
BJD requested the return of his knife which he had taken into the bedroom of the victim.
When interviewed by police BJD admitted that he had gone to the victim's bedroom for the purposes of having sexual intercourse with her. He said he had placed his knife on the bed and placed one hand on the mouth of the victim and one hand under the bed sheet on her left breast and then a struggle ensued. He agreed with the police facts as outlined and said that the only reason he went to the flat of the victim was to have sexual intercourse with her.

The Crimtrac record tendered by the respondents indicates that BJD was convicted at the Townsville Magistrate's Court on 9 December 1975 of aggravated assault on a female and was sentenced to 12 months imprisonment.

In his affidavit dated 4 August 2014 BJD makes statements to the following effect regarding this offence:

He was living in a hostel in the town where the assault took place. He did not know the victim of the assault but had noticed that she was staying with another male at the hostel.
He was approached by police who said that a girl staying at the hostel had made allegations that he had touched her. He is not sure what the girl told police. He did not know the girl and had never spoken to her.
The police asked him what part of the girl's body he had touched and he said he had never touched her.
He does not remember if there was a hearing, but remembers telling the Magistrate that he was not guilty.
He was drinking "a fair bit" at the time and that might be why his memory is poor.
He did not have a lawyer representing him and did not seek legal advice.

Under cross examination BJD made further statements about this matter to the following effect:

Whilst the police facts state that he admitted to the offence, he cannot remember the interview.
He does not remember if the facts as described by the police are correct.
He denies that he went to the room of the victim with a knife to have sex.
It is a possibility that he might have had too much to drink and does not remember committing the offence.

Under cross-examination the applicant agreed that the offences as set out in the police facts are serious and in his final submissions, the solicitor for the applicant noted that the applicant acknowledged the seriousness of the offences.

Counsel for the respondent submitted that the offences are serious and that the offence involving the 5 year old is particularly serious and demonstrates a particular risk to children.

The Tribunal notes that the custodial sentences imposed in respect of the offences indicates that the sentencing courts viewed each of them as a serious offence.

The Tribunal is satisfied on the evidence that these are serious offences.

The period of time since those offences or matters occurred and the conduct of the person since they occurred.

The first of the index offences occurred in 1971 and the last in 1975. Therefore the most recent index offence was some 39 years ago.

The applicant's solicitor submitted that between 1969 and 1975 he was drinking alcohol to excess and the offences are restricted to that period of time.

The respondent's counsel submitted that despite the time that has elapsed since the offences, there are allegations that have been made of misconduct since that time and these should be taken into account in assessing the significance of the time that has elapsed since the index offences. This issue is dealt with below.

Counsel for the respondent submits that the Tribunal should take into account a comment recorded in Family and Community Services tendered by the respondent. That comment is to the effect that on 19 February 2009 a caller had contacted that agency and said that the mother of Mrs BJD's children had disclosed "on many occasions in the past that (first name of BJD) had sexually abused her when she was a child. Caller stated that each time she spoke about this issue the mother would get emotionally distressed so caller believed the mother to be genuine. Caller has concerns about the children frequenting the home where (BJD and Mrs BJD) reside".

Counsel for the respondent submits that this comment refers to statements said to be made by the daughter of Mrs BJD that BJD has assaulted her (BJD's daughter) when she was a child.

The applicant's solicitor did not object to the admission of this material, but submitted that it should be given limited weight as hearsay. He also submitted that the comments were made in the context of Family Court matters. The Tribunal notes that the notation made on 19 February 2014 includes that "caller is proceeding with FLC orders ...".

In his affidavit dated 4 August 2014 BJD makes statements to the following effect about his relationship with the daughter of BJD:

He, Mrs BJD and the daughter of BJD moved together to a country town in 1993. From that time he had more involvement with Mrs BJD's daughter because he was not working. This included helping her with her homework and taking her to the swimming pool to help improve her swimming.
The daughter of Mrs BJD had some behavioural issues whilst attending school.
There was no involvement of Family and Community Services during the time he lived with the daughter of Mrs BJD and there were never any issues raised in relation to him and the daughter of Mrs BJD.

When questioned about these matters under cross examination, BJD made statements to the following effect:

Mrs BJD's daughter was 9 to 10 years old when BJD and Mrs BJD began to live together.
He had previously known of the allegation made by the daughter of Mrs BJD.
He agreed that the allegation is that he had sexually abused the daughter of Mrs BJD.
Despite that knowledge he stated in his affidavit that there had never been any issues raised about him and the daughter of Mrs BJD.
He did not advise Dr Lennings of the allegation. He did not think about it at the time.
The daughter of Mrs BJD use to abuse him for being in her room.
He was in the room of Mrs BJD's daughter because she did not clean her room and he cleaned it.
When abused by the daughter of BJD for being in her room he would tell her that he had not been in her room by himself and that her mother had been with him.
The daughter of BJD had tried for years to cause a break up between him and Mrs BJD so that she could return to her father.

In her affidavit dated 4 August 2014 Mrs BJD states that she never saw BJD act inappropriately with her daughter and her daughter has never mentioned to her that any inappropriate behaviour occurred.

Under cross-examination Mrs BJD denied any knowledge of allegations about BJD abusing her daughter. She denied that in her affidavit she referred to the relationship between her daughter and BJD because she knew of the allegations. She said that she thinks the reason she made those comments in her affidavit was because she was asked about whether there was any inappropriate behaviour between BJD and her daughter.

Under re-examination the solicitor for BJD drew BJD's attention to a note in the Family and Community Services document dated 1 April 2009 that states that "reported information ... appears to be unfounded. Police have advised that they have no conviction noted for sexual offences by step (maternal grandfather)". BJD said that no one from any government agency, including Family and Community Services and police, had ever spoken to him about any allegations of abuse of Mrs BJD's daughter.

Counsel for the respondent submitted that it is unclear whether the statement cited by BJD's solicitor referred to the information provided by a caller alleging complaints by Mrs BJD's daughter about assault by BJD, or to some other reported information. He conceded that the Family and Community Services documents submitted for the hearing and the evidence of BJD and Mrs BJD indicate that there appears to have been no detailed examination by Family and Community Services of the allegations.

BJD's solicitor submitted that the Tribunal should place little weight on the notes regarding the call made to Family and Community Services as it represents third hand hearsay. He noted that the matter at issue will decide whether or not BJD is able to live with his family and is therefore a very important matter. He said that if the material was considered important by the respondent then the daughter of Mrs BJD should have been called to give evidence of the matter.

BJD's solicitor also drew the attention of the Tribunal to a reference provided by the daughter of BJD which makes positive comments about BJD's role as "more than a father" to her and about his assistance with her children.

The Tribunal accepts that the comments to which the respondent's counsel has drawn the Tribunal's attention are relevant, but places little weight on them for the reasons submitted by the applicant's solicitor.

The age of the person at the time the offences or matters occurred

BJD was 28 years old at the time of the first index offence and he was 32 years old at the time of the last index offence.

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.

Counsel for the respondent submitted that the age of the victim of the first offence was less than 10 years though the offence of which BJD was convicted was that of "Indecent assault on female under 16 years of age". As noted above, on the Police Incident Report regarding this offence the age of the victim appears to have been changed from "under 16 years of age" to "under 10 years of age".

Under cross-examination the applicant said that the police said the victim was 10 years of age. The applicant did not suggest that the reference to 10 years of age was inaccurate.

Based on the available material the Tribunal is satisfied that the actual age of the victim is not ascertainable. However it is clear that she was less than 16 years of age.

The victim of the second index offence was 5 years old.

The victim of the third index offence was 23 years old.

The Tribunal is of the view that due to their age, the victims of the first two index offences were vulnerable.

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

The applicant was 28 years old at the time of the first index offence. The difference in age between the applicant and the victim of the first offence is, on the evidence before the Tribunal, not certain. However, the Tribunal is satisfied that the victim was less than 16 years old. Taking a scenario most favourable to the applicant (i.e. that the victim was 15 years old) the age difference was 13 years, and in the view of the Tribunal is significant.

The applicant was 32 years old at the time of the second offence and the victim was 5 years old. The Tribunal is satisfied that the age difference is significant.

Counsel for the respondent submitted that the age difference between the victims and the offender is significant. On the assumption that the victim of the first offence was 10 years old, he submitted that it is significant that the victims of the first two offences were not adolescent.

The difference in age between the offender and the third victim was 9 years.

Whether the person knew, or could reasonably have known, that the victim was a child.

Under cross-examination the applicant said that he does not know the age of the first victim but that the police said she was 10 years old. He did not challenge that statement or suggest that it was inaccurate and the solicitor for the applicant did not challenge that statement. Under cross -examination the applicant accepted that the age of the second victim was five years old.

In his oral and affidavit evidence the applicant does not seek to suggest that he did not know that the victims of the first two index offences were children.

In his final submissions the solicitor for the applicant noted that the applicant said that he knew that the victims were children and knew that he had done the wrong thing.

Taking these matters into account, the Tribunal accepts that the applicant knew that the victims of the first two offences were children.

The victim of the third index offence was not a child.

The person's present age

BJD is now 71 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred.

In addition to the index offences, BJD has been found guilty of two counts of carnal knowledge as indicated in the Crimtrac record tendered by the respondent:

On 9 September 1969 BJD was indicted for and entered a recognizance for two years for the offence of carnally knowing a female under the age of 16 years;
On 28 May 1973 BJD was sentenced in respect of an offence of carnal knowledge, but no information concerning the sentence was put before the Tribunal.

In a statement taken by police on 15 July 1969 regarding the 1969 charge of carnal knowledge, the victim states that:

She was 13 years of age and would turn 14 years old on 20 March 1970. She states that on her last birthday BJD asked her how old she was and she replied "thirteen".
She went to sleep in a bed with her brother who was 10 years old.
The brother was asleep and did not wake.
BJD got into bed beside her under the blankets and told her the take off her pants. She said "no I'll get into trouble" and he said "no you won't" and again said "take your pants off". She did so.
BJD then took off his pants and got on top of her saying "it won't hurt". She said "don't do it".
BJD then pushed her "legs aside and got inside them and then he pushed his dickie up against my pussy and then he said to me 'put it in for me'. She states she said "no". BJD then "put his hand down and put the end of his dickie into my pussy and then began to push it in and out of my dickie (sic) while he was moving his hips up and down. While he was doing this he put his hand inside my pyjama top and rubbed my tits with his hands and was kissing me on the mouth. He kept pushing his dickie in and out for about a quarter of an hour. While he was doing this to me I said 'you're hurting me'. "
The victim also states "this is not the first time (BJD) has done this to me. He has done it about five times before this night ...it first happened about May this year".

A record of interview between BJD and police conducted on 15 July 1969 includes the following:

BJD said that he was living at the home of the girl whom he believed to be 14 years old. He knew that she attended school.
BJD said that he sat on the side of the girl's bed and "after a while I got into bed with (her) and had sexual intercourse with her"
BJD states that the girl consented to him having sex with her.
BJD states that he supposed that at the time he was "half silly with grog".

In his affidavit dated 4 August 2014, BJD makes the statements to the following effect regarding this matter:

On the night of July 1969 he was visiting the mother of the victim and had been drinking.
The victim grabbed his hand and pulled him towards the bed and onto the bed and pulled up the covers. She asked him to have sexual intercourse with her and he did.
He only had sexual intercourse with the victim on that one occasion.
He remembers being charged with carnal knowledge but does not remember having a police interview or going to court for that matter.

When cross-examined about his matter, BJD agreed that at the time of the police record of interview he did not say that the girl took his hand and pulled him towards the bed. He said however that he now remembers that this was the case. He said he was not sitting on the bed, but at the table and she pulled him to the bed and she consented to sexual intercourse.

Under cross-examination BJD denied that he had sexual intercourse with the victim on more than one occasion.

BJD admitted under cross examination that he has a tattoo on his left elbow bearing the words "Tommy (heart symbol) (victim's name) but said that this would not have been in relation to the girl involved in this matter.

In relation to the offence for which BJD was sentenced on 28 May 1973, the NSW Police Incident Report tendered by the respondent states that BJD was staying with the parents of the victim who was 13 years of age and who consented to the intercourse. She became pregnant as a result.

In his affidavit BJD makes statements to the following effect regarding this matter:

In 1972 he was approximately 30 years old and he entered into a relationship with the victim who became pregnant and later gave birth.
He and the victim wanted to get married but this was not permitted by her mother.
The victim of this offence was his current wife who made contact with him in 1991 and who moved to live with him in 1992.

When she was cross examined in relation to this matter, Mrs BJD confirmed that the sexual intercourse was consensual and said that she did not think it unusual that a 30 year old man was interested in a 13 year old child.

Counsel for the respondent submitted that whilst the offences of carnal knowledge were not, at the time they were committed, covered by the sections of the Crimes Act 1900 that are listed in the schedule, they would be if they were committed now. Counsel for the respondent submitted that they should be taken into account in assessing the risk posed by the applicant.

The applicant's solicitor did not oppose this submission.

The Tribunal considers that these offences are serious and relevant as part of an assessment of the risk posed to children by BJD as they refer to sexual relations between the applicant when an adult and 13 year old girls.

The Crimtrac record tendered by the respondent indicates that BJD has not been convicted of any offence since 1975.

Despite the clear Crimtrac record since 1975, counsel for the respondent submitted that the Tribunal should take into account comments made in the Family and Community Services documents about information provided alleging that the applicant had abused the daughter of Mrs BJD. This matter is dealt with at paragraphs 50 to 61, above.

In her affidavit Mrs BJD states that she has never seen BJD act inappropriately with her grandchildren. She also states that Family and Community Services did not really explain why BJD was required to move out of the house where they had been caring for her grandchildren, but she knew it was because of his previous charges.

Under cross-examination Mrs BJD said that she did not know much about any of the charges, other than the one involving her.

When given a brief summary of the 1971 offence Mrs BJD said that she was surprised and that it did not meet with her expectations of what BJD had done in the past.

When given a brief summary of the 1975 offences Mrs BJD answered in the affirmative when asked if she was shocked.

When asked if the knowledge about these offences changed her view of the risk posed by BJD to her grandchildren Mrs BJD said no, because he had not done anything like that to the grandchildren.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

In his report dated 28 July 2014 Dr Lennings states that he interviewed BJD for one hour and twenty minutes and had a further brief telephone conversation with him. He states that BJD appeared "open and cooperative" but had a poor memory for events that took place some 40 years earlier. He states that BJD's poor memory is affected by the fact that he appears to have been heavily inebriated at the time of the offences as well as the fact of the long period of time that has elapsed since the offences.

Dr Lennings provides the following information about the interview:

BJD was not able to recollect or reflect why he chose such youthful victims and denied any paedophilic or hebophilic fantasies and said that he has never used pornography. Dr Lennings states "it appears that any behaviour related to under aged children ceased in 1975".
BJD said that he remained a heavy drinker until the early 90s but then with the aggravation of heart troubles and diabetes he was advised to give up smoking and gave up alcohol around the same time. He relapsed into moderate alcohol use for a brief period but has been sober for more than the last 10 years.
BJD said that the only person in whom he has had any sexual interest for a long period is Mrs BJD, though he is not now sexually active, sexual activity having stopped around 1993 when he got diabetes. Sexual activity with Mrs BJD stopped about 10 to 12 years ago. He has tried medication to improve his performance but this had not been successful.
BJD said that he and Mrs BJD had fallen in love at the time he committed the offence of carnally knowing her. He said he knew that what he was doing wrong but that there was no force involved. Dr Lennnings comments in relation to this matter that there is clearly an element of psychologically coercive power (grooming) based on the age disparity and the long period during which he had known the child (now Mrs BJD). He also comments that there appears to be no doubt that BJD now understands and accepts that his behaviour was wrong, although that is a judgement he has been able to acquire in hindsight.
In relation to the 1969 offence, BJD said he cannot recall that offence though he accepts that it happened. He said it was a one night stand and he had been drinking at the time and no relationship was intended from it. Dr Lennings states that this offence appears to have been an opportunistic offence occurring in the context of still being a relatively young man and being inebriated.
In relation to the 1971 offence BJD said he was sleeping in a single bed with a girl at the request of the mother. He remembers accidentally touching the girl while he was still asleep. He appears to be aware that the offence took place and had some rough memory of it, though he presents his motivation differently from the police facts.
BJD did not remember either of the 1975 offences because of the impact of alcohol use. Dr Lennings states that the first offence appears to have been one in which he groomed the child for the purpose of sexual intercourse and was only prevented from so doing by the timely arrival of the father.
In relation to the second offence of 1975, Dr Lennings notes there is reference to BJD carrying a knife though he could not recall that and appeared to be shocked at the suggestion he had done so.
Dr Lennings states that given the pattern of offences there is a suggestion of some kind of hebophilic deviance but such behaviour appears to have ceased from 1975.
BJD said that he thought the age of consent was either 16 or 18. Dr Lennings comments that he appears to have a poor notion of the age of child consent but has a very clear understanding that young teenage girls are not people for whom any sexual behaviour should take place.
BJD said that he is not a risk, has no intention or interest in anyone other than his wife, and that not being able to see his wife and grandchildren is affecting him.

Dr Lennings states that in conducting an actuarial assessment of the risk of reoffending by BJD he used the Static 99R instead of the usual Static 99. He states that the former is more appropriate because of the age of BJD and the time since the index offences. On that instrument, Dr Lennings says that BJD scores "2", which places him in the moderately low risk group.

Dr Lennings states that risk rating is usually assessed in terms of bands, varying between two groups. The first group is a high-risk group who are likely to have a frequent antisocial personality or antisocial behaviour. The second group are called "routine", and have a few elements of behavioural disorders in their repertoire. Given BJD's long absence from criminal offending he should be assessed within the routine group. For the routine group, a score of "2" suggests that for every 100 people who have that risk profile, approximately 11 would be expected to reoffend over 10 year period. Accordingly, BJD would be regarded as a low risk offender particularly given the length of time that has elapsed between his last offence and his current age.

To further assess risk, BJD was assessed using the dynamic risk factors proposed by the Risk for Sexual Violence Protocol (RSVP). That assessment shows that the BJD has few likely risk factors suggesting any ongoing or live risk. He does not demonstrate any current or recent offending although some escalation of offending was obvious between 1969 and 1975, that has little meaning for his current behaviour.

Dr Lennings opines that BJD is in a dedicated relationship and has no particular psychological or mental health issues and does not have a personality disorder. He is not in need of employment and does not drink alcohol or abuse drugs. He reports a stable social group and reports generally speaking a good pro social life.

In the opinion of Dr Lennings, the factors that might indicate some risk in the BJD's repertoire are primarily historical and have little explanatory power now for his behaviour.

According to Dr Lennings, given the current risk assessment it seems appropriate to moderate the category of risk to which BJD belongs from that of "moderate -low risk" down to "low risk".

Dr Lennings is of the view that BJD does not present as a person who is likely to represent any appreciable risk of harm to his stepchildren or indeed to any other young children.

Dr Lennings states that BJDs escalation of sexual deviance between 1969 and 1975 was associated with high levels of alcohol use. His behaviour appears to have been hebophilic, but although no good explanation for that behaviour can be found in his history, equally there seems to be an inexplicable maturing out of the behaviour after 1975. There is no current evidence of any sexual deviance, he is not sexually active and is unlikely to be so in the future, but even if he were, there is no evidence to suggest he would engage in deviant behaviours at the present time.

Dr Lennings states that he assumes the explanation for BJD's behaviour was a mix of immaturity, alcohol abuse and weakening inhibitions, opportunity and some sexual impulsivity. He is now a mature man with a well-developed sense of family responsibility and an absence of risk factors that suggest his behaviour as a young man might not have much meaning for his current behaviour.

Dr Lennings states that in respect of specific questions usually addressed in reports such as his:

No appreciable risk of safety to children is identifiable from the assessment.
The risk of re-offence is low. Given the passage of time since the offences and his age, there are no scenarios in which risk of reoffending could be identified.
The original offences involved young post-pubescent girls. However given the passage of time it is unlikely that such a group currently represents a sexual attraction for him. He describes no behaviour since 1975 that suggest any enduring fascination with this population subgroup, for instance he denies any use of pornography that might have kept alive such an interest.
There appears to be no current requirement for treatment, although in the 1970s he would have been be well advised to seek treatment.

Dr Lennings was cross-examined about the account given to him by BJD about the offences. He said that he had not seen BJD's affidavit or a draft of the affidavit.

In relation to the 1969 offence Dr Lennings said that he asked BJD to tell him all that he remembered about the offence. He said he could not remember anything and did not provide the information contained in his affidavit about the victim grabbing his hand in pulling him to the bed. Dr Lennings said that if BJD does recall events that way then he is distorting the events because it is unlikely that they happened that way.
In relation to the 1975 offence Dr Lennings states that he assumed that BJD was minimising the offence by blaming alcohol.
Dr Lennings said that he was not aware that the victim of the 1971 offence may have been 10 years old but said that this would not affect his assessment of the risk posed by BJD to children of that age group.
Dr Lennings said that when speaking to him about the 1975 offence BJD did not mention that the victim had come to the caravan seeking comics. BJD had said that he did not remember the events. Dr Lennings said that his characterisation of BJD's actions as grooming of the young girl was related to the police facts which said that BJD and the girl's parents were sitting around talking before she went to his caravan. Dr Lennings said that he had not realised the child was a 5 year old. Dr Lennings agreed that the facts as provided in the Police Summary of Facts, being that BJD had an "uncontrollable urge to have sex with" the child and then masturbated between her legs represents a very serious situation.
Dr Lennings conceded that where one of the victims was 5 years old, and another was 10 years old he would attribute a greater level of sexual deviance to BJD, but said that does not increase the assessed risk because of the lack of any sexual offences since the index offences.

Under cross examination Dr Lennings conceded that whereas he had scored BJD's risk on the basis that none of the victims was a stranger, BJD had said that the victim of the aggravated assault was a stranger. He said this would increase the score on the Static 99R by one point so that BJD's score would be "3".

During cross examination it was put to Dr Lennings that in scoring the Static 99R he had erroneously scored BJD as "0" on an item about his current relationship because he was living in a marital relationship with Mrs BJD. Counsel for the respondent submitted that as Mrs BJD had been a previous victim of BJD their relationship should not count for this item on the Static 99R. Counsel for the respondent referred to the Static 99 coding rules which state that where an offender has lived for over two years with a child victim in a lover relationship that relationship is not one that is accepted for this item and the offender should score "1" for that item. Dr Lennings said that in his opinion this does not apply to the relationship between BJD and Mrs BJD where their decision to be in a relationship was made when they were mature people.

Counsel for the respondent also suggested to Dr Lennings that he should have scored BJD higher on an item related to the existence of a non-sexual violent offence. The coding rules specify that where an offender is convicted for a separate non-sexual violence offence at the same sentencing as an index sexual offence then there should be a score recorded on this item. Counsel suggested that BJD's sentencing at the Townsville Magistrate's Court accords with the circumstances defined in the coding rules because the Crimtrac record in relation to that event records a conviction for the offence of being found in a dwelling house without lawful excuse and a sentence in respect of that offence of 6 months imprisonment, as well as the conviction and sentence for the offence of aggravated assault on a female, and a sentence of 12 moths for that offence. Dr Lennings disagreed on this point and said that in his opinion, the non-sexual offence must be in addition to the sexual offences if it is to be counted. He said that there must be two separate violent offences.

Dr Lennings agreed with a proposal put by counsel for the respondent that the Static 99 scoring guidelines establish that it is acceptable to move an individual by one category in the Static 99 risk categories applying to particular scores, but not two categories.

Dr Lennings said that the issues raised by counsel for respondent resulted in an increase on BJD's score on the Static 99R from "2" to "3" but that he remains in the same risk category as that described in his report. Hence under the scoring guidelines it remained appropriate to modify the category to which BJD is assessed as belonging from "moderate-low" to "low" despite the increase in his score.

In cross -examination Dr Lennings was asked his view of the significance that Mrs BJD was not aware of the circumstances of the offences including the age of the 5 year old and 10 year old victims. Dr Lennings said that it is not unusual for people to not discuss the details of offences but this does raise issues about communication and risk to children. However he noted that now the details have been provided to Mrs BJD.

Counsel for the respondent also questioned Dr Lennings about the possible significance of the allegations made by the caller to Family and Community Services, which are dealt with at paragraphs 50 to 61, above. However he said that whilst, had he known about these it would have raised some concerns, he was not able to make more of the matter in the absence of more information.

In re-examination the applicant's solicitor said that Family and Community Services had assessed the safety of BJD's step grandchildren in light of the allegation made by the caller. Dr Lennings said that if this were the case he would be more at ease about the situation, but he would still need to think about the situation. He said that he would need to be very cautious in concluding that BJD continues to be deviant. He also said that the fact that Mrs BJD's daughter had provided BJD with a reference was relevant and would reduce the weight placed on any such allegation, unless one were to assume that she would deliberately place her children at harm.

The Tribunal notes that in his final submissions counsel for the respondent raised some doubt about whether the assessment made by Family and Community Services was in fact made in the light of these allegations made by the caller, or other allegations. This issue was not pursued by either party.

The Tribunal notes that two of the three index offences, and the two offences of carnal knowledge of which the applicant has been found guilty involved children. The Tribunal is of the view that despite Dr Lennings' view that there is no appreciable risk to the safety to children identified in his assessment, if there were a repetition of these offences that repetition would significantly impact on children.

Any information given by the applicant in, or in relation to, the application,

In his affidavit BJD states that:

The daughter of Mrs BJD had a child in 2002 and they lived with him and Mrs BJD for a couple of years. Her second daughter stayed with them from time to time and her third daughter came to live with them under an arrangement with Family and Community Services.
The daughter of BJD had another two children who in August 2013 came to live with him and Mrs BJD under an arrangement made by Family and Community Services.
In January 2014 he was told by Family and Community Services staff that he could no longer live in the same house as the children because of his criminal history and the decision of the Children's Guardian. He moved out of the house and stayed in an Aboriginal Hostel until securing a home unit in which he was then living.
It has been a big strain to move away from Mrs BJD and the children.
He was encouraged by a Family and Community Services officer to appeal the decision of the Children's Guardian.

In her affidavit Mrs BJD said that it is difficult for her to care for the children in the absence of BJD because they would care for them as a team. She also states that in her opinion the need to move out of home is "destroying" BJD who is "not his normal self".

BJD also supplied a number of references from friends attesting amongst other matters, to his honesty and willingness to be of assistance to others, including the care him has provided for his grandchildren.

In relation to the seriousness of the offence, the solicitor for BJD noted that BJD acknowledges the seriousness of the offences and said that he had acknowledged that he had done the wrong thing.

The solicitor for BJD submitted that Dr Lennings also noted the seriousness of the offences and took that into account when assessing the risk posed by the applicant. However he submits that the most significant factors are the time since the offences and the conduct of the offender since the offences. He notes that it has been almost 40 years since the last offence and in that time the only matters raised were the allegations said to be made to another person by the daughter of Mrs BJD.

The applicant's solicitor also made the following submissions on behalf of the applicant:

(1) He has had children in his house since 2002 and over that time there has been only one allegation to which little weight can be given.

(2) In the voluminous documentation provided from Family and Community Services there were no matters adverse to the applicant and that the Department had decided to place the grandchildren of Mrs BJD in the home with BJD and Mrs BJD.

(3) BJD's total criminal record spans the period between 1969 and 1975 and that at that time he was using alcohol excessively.

(4) BJD is not likely to use any enabling order to seek work anywhere as he is 71 years old and has a heart condition and diabetes.

(5) The absence of a working with children clearance is having an adverse impact on BJD's family and grandchildren whilst the evidence does not disclose a real risk of harm to the children.

(6) The assessment of Dr Lennings, who is an expert in the field, is very clear that the risk posed by BJD is in the lowest category.

Any other matters that the Children's Guardian considers necessary.

The Children's Guardian opposed the application and stressed the applicant bears the burden of proof in relation to the application.

Counsel for the Children's Guardian submitted that despite Dr Lennings' evidence regarding the scoring of the Static 99R there remains a question about the validity of accepting the relationship between BJD and his wife as one that should be accepted under the scoring code.

Counsel for the Children's Guardian submitted that if this item was scored with a "1" instead of a "0" then the overall Static 99R score for BJD would be "4" and not "3" as had been agreed to by Dr Lennings under cross examination. On the basis of other information Dr Lennings had moved the risk category to which BJD belongs from that of "moderate low", as was appropriate for a score of "2" or "3" to that of "low" - which is the category for scores of "0" to "1". Counsel submitted that if the scoring of the relationship item properly took into account that Mrs BJD was a child victim of BJD, then his score would have been "4" placing him in the "moderately high" category. He submitted that as any downgrading of a risk category can only move a person one category, then the override would only reduce the risk of BJD to moderate-low.

In relation to this submission, the applicant's solicitor stressed that Dr Lennings is an experienced and qualified person to administer the Static 99 and that he was satisfied that whilst the score obtained by BJD should increase from "2" to "3" he was clear that the other matters raised by the respondent did not affect the score.

The Tribunal accepts the submission of the applicant on this matter. The issue was discussed at some length during the hearing. The Tribunal is satisfied that Dr Lennings understood the issues raised by counsel for the respondent and nonetheless was confident about the score he had allocated to BJD.

Counsel for the Children's Guardian submitted that Dr Lennings had spent only one hour and twenty minutes in an interview with the applicant and that other matters must be considered in addition to his assessment.

Counsel for the respondent further submitted that:

the applicant had committed three serious index offences as well as two offences which whilst not at that time coming under the sections of the Crimes Act 1900 that are listed in Schedule 2, would, if committed now, come under that schedule.
The details of the offences, including the ages of the 5 and 10 years old victims represent a particular risk to children, not just teenagers as Dr Lennings had assessed when not knowing the ages of those victims.
Whilst it is not possible to fully assess the importance of the allegation made by the caller to Family and Community Services, BJD had not advised Dr Lennings about it even though he was aware of it.
BJD was not a good witness. He was vague about details and whilst he was able to recall some details, such as that the child in the incident in Queensland went into the caravan voluntarily, he was not able to recall other details.
Whilst Mrs BJD had provided an affidavit in part stating that she believes that BJD is not a risk to the grandchildren, BJD had not disclosed to her the details of his previous offences.
Whilst the consequences of BJD not being granted an enabling order were that he would be unable to reside with is wife and children, the grant of the order would enable him to take part in any child related work.

Conclusions and orders

The Tribunal notes that in reaching its decision the primary consideration is the safety, welfare and well being of children, not the punishment of BJD.

The factors that the Tribunal must take into account as listed in subsection 30(1) of the Child Protection (Working with Children) Act 2012 are not weighted and the Tribunal has taken each of them into account.

There are a number of considerations that would suggest that the Tribunal should grant the applicant the order he seeks. These are, in summary:

The very long period of time that has elapsed since the index offences.
The lack of any criminal notifications since the last index offence.
The likely role played in the index offences of BJD's lifestyle at the time of the offences and the changes that BJD has made in his lifestyle since the time of the offences.
The age of BJD.
The fact that BJD is no longer sexually active.
BJD's admission that his behaviours in respect of the past offences were wrong.
The long period of time during which BJD has had the care of the daughter of Mrs BJD and Mrs BJD's grandchildren and the lack of any reliable evidence that he has committed any offences regarding them over that time.
The decision of Family and Community Services to place the step grandchildren of BJD in the care of BJD and Mrs BJD.
The purpose for which BJD seeks the order, being to allow him to continue to care for his step-grandchildren
The assessment of Dr Lennings to the effect that BJD is a low risk of reoffending.

However the Tribunal is also of the view that there are a number of matters that suggest that the application should be refused. These are, in summary:

BJD was not a reliable witness. The Tribunal does not accept that he is able to clearly remember some aspects of past offences and not other aspects. The Tribunal also notes that BJD has told different versions of the offences in his affidavit and in his interview with Dr Lennings, and that those accounts are at variance with what he is said to have said to police at the time of the offences.
Whilst the solicitor for BJD states that BJD realises he did the wrong thing in committing the offences, BJD presented different versions of the offences. In his affidavit and oral evidence he denied that he carried out the actions of which he was found guilty in respect of the 1971 offence. In his affidavit regarding the 1975 offence involving the 5 year old girl he says that he is "positive" that he did not remove her clothing and in his oral evidence he was unable to recall the facts of that offence. He said that he does not recall the details of the 1975 offence involving the adult victim. He also claimed that the 1979 carnal knowledge was consensual, in contrast to the police facts. The Tribunal cannot be satisfied that when BJD says that he realises he did the wrong thing, his view of what he did is in accordance with the facts as charged. This reduces the weight that the Tribunal can place on his acknowledgement of wrongdoing.
In addition to providing information to Dr Lennings that is different from other versions of the offences, BJD failed to disclose to Dr Lennings his knowledge that allegations of sexual assault had been made against him by the daughter of Mrs BJD.
The failure of BJD to disclose the facts of the offences to Dr Lennings, and his failure to disclose information about the allegations made by the daughter of Mrs BJD resulted in Dr Lennings not being able to take those matters fully into account in his assessment. Whilst these matters were raised in cross examination the Tribunal is not satisfied that Dr Lennings was able to afford them the degree of consideration that would have been possible had he known about them previously.
BJD is under an obligation to provide the Tribunal with any matters relevant to the application. The Tribunal is of the view that in failing to provide information about the allegations by the daughter of Mrs BJD, of which he was aware, until the matter was raised in cross-examination, he failed to comply with that obligation.
The index offences for which BJD was convicted are serious.
Whilst the offences of carnal knowledge were not at that time offences under the sections listed in the schedule, they are serious and involved sexual intercourse with girls who were 13 years old.
The totality of the sexual offending of BJD is serious.
Whilst BJD was assessed by Dr Lennings as belonging to a category of offenders with a low risk of sexual reoffending, his score on the Static99 is not negligible. He scored "3" on a scale where it is possible for a sexual offender to score "0". That score would have put him in the "moderately low" category of re-offending risk if not for the override applied by Dr Lennings.
BJD had not told Mrs BJD the details of the offences. Whilst Dr Lennings is of the opinion that it is not uncommon for sexual offenders to fail to disclose details of offending, under the circumstances, where BJD is caring for Mrs BJD's grandchildren and some of the offences involved young children, the Tribunal is of the view that it is information that was relevant to their circumstances.
The Tribunal is of the view that Mrs BJD's ignorance of the details of the offences limits the weight that can be given to her evidence about the risk posed by BJD.
Notwithstanding the assessed low risk of BJD reoffending, there would be a significant harmful impact on children if offences of the nature previously committed by BJD were repeated.

The conclusion of Dr Lennings regarding the low risk of the likelihood of a repetition of offending by BJD is significant evidence in favour of granting the applicant the order he seeks, as is the length of time since the offences. However these matters are not determinative of the decision of the Tribunal. If this were the case, there would be no need for the Child Protection (Working with Children) Act 2012 to list additional matters to which the Tribunal must give consideration.

The Static 99 does not canvass the issue of the seriousness of the offences.

Against the conclusion drawn by Dr Lennings, is the serious nature of the index offences and of the total criminal record of BJD, and the fact that a number of the offences committed by BJD have involved children.

The Tribunal is not able to grant an enabling order with conditions. Providing the applicant with an enabling order would enable him to engage in any child related work, including as a volunteer. Whilst BJD has said that he is not intending to seek paid work, the Tribunal cannot ignore the possibility of him seeking some form of involvement with children other than his grandchildren.

Taking all of these matters into consideration and whilst the Tribunal is sympathetic to the circumstances of BJD and Mrs BJD, the conclusion I draw is that the applicant has not proved on the balance of probabilities, that he does not pose a real and appreciable risk to children that is greater than the risk of any adult preying a child.

The order of the Tribunal is that the application is refused.

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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: 08 October 2014

Medium Neutral Citation:	BJD v Office of the Children's Guardian [2014] NSWCATAD 167
Hearing dates:	13 August 2014
Decision date:	08 October 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior Member
Decision:	The applicant's application is refused
Catchwords:	ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - disqualifying offence occurred in 1989- by reason of offence presumed to be a risk to children - whether applicant has discharged his onus to establish the contrary
Legislation Cited:	Child Protection (Working with Children) Act 2012 Crimes Act 1900 Criminal Code Act 1899 Qld Child Protection (Prohibited Employment) Act 1998 Commission for Children and Young People Act 1998
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	BJD (Applicant) Office of the Children's Guardian (Respondent)
Representation:	Counsel Mr Harris Legal Aid (Applicant) Crown Solicitor (Respondent)
File Number(s):	1410291
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