BKE v Children's Guardian
[2014] NSWCATAD 185
•31 October 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BKE v Children's Guardian [2014] NSWCATAD 185 Hearing dates: 26 August 2014 Decision date: 31 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The applicant's application for an enabling order is refused.
Catchwords: ADMINISTRATIVE LAW - child protection - working with children check clearance - disqualified person - applicant convicted of a disqualifying offence of carnal knowledge in 1970 - statutory presumption the applicant poses a risk to the safety of children - whether the applicant has discharged his onus and rebutted the statutory presumption Legislation Cited: Child Protection Prohibited Employment Act 1998 (repealed)
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998Cases Cited: Commission for Children and Young People v V (2002) NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11Category: Principal judgment Parties: BKE (Applicant)
Children's Guardian (Respondent)Representation: J Allan, Legal Aid Dubbo (Applicant)
Crown Solicitor (Respondent)
File Number(s): 1410360 Publication restriction: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and any child referred to in the evidence before the tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcasted without the leave of the tribunal.
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 seeks an enabling order, pursuant to section 28 of that Act, declaring that he not be treated as a 'disqualified person' so that he can be granted a clearance to work with children.
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 any child referred to in the evidence before the tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcasted without the leave of the tribunal.
The applicant is a 'disqualified person' by reason of his conviction, on 19 May 1970, in the then Court of Quarter Sessions, for the offence of carnally knowing a girl under the age of 16 years contrary to s 71 of the Crimes Act 1900: see clause 1(i) of Schedule 2 of the Act.
The applicant was 20 years of age at the time. The Court made an order deferring sentence on the condition the applicant entered a recognizance to be of good behaviour for two years.
The applicant is now 64 years of age and seeks a working with children check clearance as he and his wife are the primary carers of their youngest grandson, who is 16 years of age. The applicant and his wife have been the primary carers of their two grandsons since they were very young. The oldest grandson is now aged 22. The applicant's wife has been the authorised carer of the two grandsons and by reason of this authorisation the applicant needs to obtain a working with children check clearance as he resides in the same house.
On 26 June 2014, the respondent determined to refuse the applicant's application, as required under subs 18(1) of the Act by reason of his disqualifying offence. On 11 July 2014, the applicant lodged his application for an enabling order with the tribunal. The applicant also made an application for a stay of the decision of the respondent pending the determination of this application. The stay application came before me on 18 July 2014. I refused that application and made orders for the filing and serving of evidence and the matter was set down for hearing, in Dubbo, on 26 August 2014.
There is no dispute that the tribunal has jurisdiction to hear and determine the applicant's application. The jurisdiction of the tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.
At the hearing, the respondent opposed the making of the order sought.
At the conclusion of the hearing on 26 August 2014, I adjourned the hearing to 29 August 2014, to give the applicant an opportunity to consider whether he wished to call his wife to give evidence about an incident that occurred on the morning of 2000, for which he was charged. The incident involved the applicant's eldest grandson, but the charge was subsequently dismissed by the Local Court. This adjourned hearing was subsequently vacated as the solicitor for the applicant advised that she had been instructed that the applicant's wife had no independent memory of the Court proceedings in 2000 and could not add anything further to that contained in the material filed by the respondent.
I have now considered all the material before the tribunal and for the reasons set out below I am not satisfied that the applicant has placed sufficient material before the tribunal to displace the statutory presumption in subs 28(7) of the Act that by reason of his disqualifying offence he poses a risk to the safety of children.
The evidence
At the hearing, the applicant relied on the following material:
(a) An affidavit of the applicant's eldest grandson, sworn on 12 August 2014; and
(b) A risk assessment report of Greg Tyrer, psychologist.
The applicant did not file and serve any written evidence. At the hearing, the applicant's solicitor, Ms Allan, said that the applicant was not proposing to give evidence and that he would rely on the material that had been filed. After some discussion, Ms Allan advised that her client would give oral evidence. Leave was granted for the applicant to give oral evidence in chief. He was also cross-examined by Ms Lowson, counsel for the respondent.
Mr Tyrer, also gave oral evidence and was cross-examined by Ms Lowson.
The respondent tendered into evidence five bundles of documents as follows:
(a) Bundle 1 contained a copy of the applicant's criminal history and copies of documents the respondent obtained in her enquires about the applicant's convictions in 1968, 1970 1984, 1982, 1984, 1985, and 1989 and the incident that occurred in early 2000 for which the applicant was charged;
(b) Bundle 2 contained a copy of event reports held by the Sex Crime Squad that refer to the applicant and documents held by Corrective Services in regard to the applicant;
(c) Bundle 3 contained a copy of a psychological report prepared by Mr Tyrer, in July 2001, concerning the applicant's grandchildren and their contact with him and their birth mother, together with some follow-up correspondence;
(d) Bundle 4 contained a copy of records held by the Department of Family and Community Services in regard to the applicant's involvement in the care of his grandchildren; and
(e) Bundle 5 contained further copies of reports by Mr Tyrer in 2001 and 2002.
The working with children legislative scheme
The Child Protection (Working with Children) Act 2012 (the Act) makes provision for the regulation of those persons who can engage in, or continue to engage in child-related work. Its objects are:
3 Object of Act
The object of this Act is to protect children:
(a) by not permitting certain persons to engage in child-related work, and
(b) by requiring persons engaged in child-related work to have working with children check clearances.
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.
The word 'children' is defined in subs 5(1) to mean persons under the age of 18 years. Consequently, the word 'child' has the same meaning.
Subs 8(1) of the Act prohibits a person from engaging in 'child-related work', unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children's Guardian for the relevant working with children check clearance. A contravention of this provision is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
Subs 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in 'child related work' where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
The term 'child-relate work' is broadly defined in section 6 of the Act. The role of an authorised carer is included as being child related work (see subs 6(1)(b) and 6(3)(c) of the Act).
As I have mentioned, subs 18(1) provides that the respondent must refuse an application for a clearance where the applicant is a disqualified person by reason of having been convicted of an offence falling within Schedule 2 of the Act. The term 'conviction' is defined in subs 5(1) to include 'a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.'
Section 22 of the Act provides that a working with children check clearance ceases to have effect five years after it was granted, unless it is cancelled or suspended prior to that time (see section 23 of the Act in regard to the grounds on which a clearance can be cancelled or suspended).
As I have mentioned, subs 28(1) of the Act makes provision for a 'disqualified person' to make an application to the Tribunal for an enabling order.
Where such an application is made section 28 also provides the following:
28 Orders relating to disqualified and ineligible persons
(1) ...
...
(4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.
(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.
(6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to ... grant the person a clearance.
(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.
(8) An enabling order may not be made subject to conditions.
(9) ...
The meaning of the word "risk" was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998:
"What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.""
The former Administrative Decisions Tribunal construed the meaning of 'risk', as it appeared in subs 33J(1) of Part 7 (now repealed) of the Commission for Children and Young People Act 1998 to have the same meaning. It is accepted that the word 'risk', has a similar meaning in the current Act.
Section 30 sets out how an application under section 28 is to be determined by the Tribunal. It is in the following terms:
30 Determination of applications and other matters
(1) The Tribunal must consider the following in determining an application under this Part:
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(j) any information given by the applicant in, or in relation to, the application,
(k) any other matters that the Children's Guardian considers necessary.
(2) ...
Consideration of subs 30(1) factors
Set out below is the evidence and my findings in regard to each subs 30(1) factor.
(a) seriousness of the disqualifying offence
As noted above, the disqualifying offence of which the applicant was convicted was the offence of canal knowledge, contrary to s 71 of the Crimes Act 1900. He was convicted on 19 May 1970, on a plea of guilty. At the time he was a single man, 20 years of age and a labourer by occupation. On 14 April 1970, the police attended the applicant's home and said they wanted to speak to him about the victim. He was asked whether he knew her to which he responded he did know her. The police officer told him that the victim had informed police that she was pregnant and that the applicant was responsible for her condition. The applicant went voluntarily with police to the police station and participated in a formal record of interview. In that formal interview the applicant acknowledged that he had been having sex with the victim since new year's day of that year. He said he had known her for about six months and that they had been engaged in sexual intercourse a number of times since new year's day. The applicant was asked how old she was to which he responded that she was 'going on to 16'. The applicant said that the victim had told him how old she was after the first time they had engaged in sexual intercourse. The applicant was also asked whether he was aware that he should not engage in sexual intercourse with a girl under 16 years of age to which he responded 'yes'. The applicant was asked whether he intended to get married to which he responded 'yes'.
The applicant's responses to the questions asked of him by police is consistent with a statement made by the victim on the same day. The victim was born in August 1954 which made her almost 15½ years of age at the time the applicant began having a sexual relationship with her.
In his oral evidence before the tribunal the applicant said he had no recollection of what had occurred such a long time ago.
Ms Allan, solicitor for the applicant argued that the offense was not serious and did not form a sufficient basis on which to refuse the applicant a working with children check clearance as it had occurred so many years ago. While the offense occurred many years ago, the legislation expressly requires the tribunal to take into account the seriousness of the disqualifying offence in determining whether the applicant has discharged his onus.
In my view, the disqualifying offence of which the applicant was convicted is a serious offence. However, on the material before the tribunal the applicant's conduct did not fall within the upper end of seriousness of such an offence.
(b) the period of time since the commission of the disqualifying offence
It is almost 44 years since the commission of the disqualifying offence. However, the applicant has a number of convictions that involve violence that occurred subsequent to that offence. It is these and an earlier offence of buggery which are of concern to the respondent. I have dealt with this offence and the applicant's other offending conduct below.
(c) the age of the applicant at the time of the disqualifying offence
As I have noted the applicant was 20 years of age at the time the disqualifying offence was committed.
(d) the age of the victim of the disqualifying offence and any matters relating to the vulnerability of the victim
As noted above, the victim was 15½ years of age at the time of the commission of the disqualifying offence. Other than her young age there is no evidence of any further vulnerability of the victim of the disqualifying offence.
(e) the difference in age between the victim and the applicant and the relationship (if any) between them
There was a 4½ year difference in age between the victim and the applicant. They were not related but had known each other for a short time before they commenced a sexual relationship.
(f) whether the applicant knew, or could reasonably have known, that the victim was a child
As I have already noted the applicant acknowledged in his interview with police that while he did not know the applicant's age at the time he commenced a sexual relationship with the victim he was made aware of this shortly thereafter.
(g) the applicant's present age
The applicant is currently 64 years of age. He is in poor health with what appears to have been a longstanding issue with his heart.
(h) the seriousness of the applicant's total criminal record
As I have noted above, the applicant has been convicted of an offence of buggery in 1968 and a number of offences involving violence. Since January 1993, the applicant has not been convicted of any further offences, but was charged with indecent assault in 2000. As I have noted, that charge was dismissed in July 2000.
The applicant's conviction for buggery was the applicant's first offence. The victim of the offence was the five year old grandson of the applicant's aunt and the offence occurred at a time the applicant was alone with the victim. He gave the victim a shilling after having sexually assaulted him. When interviewed by police, the applicant admitted to the offending conduct and when asked if there was any reason why he did this, he said 'no'.
The applicant was convicted of this offence on 27 May 1968. The Court deferred sentencing the applicant on the condition that he entered into a recognisance to be of good behaviour for two years.
In November 1982, the applicant was convicted of an offence of assault occasioning actual bodily harm. The Court again deferred sentencing the applicant on the condition he entered into a recognisance to be of good behaviour for 12 months. In March 1984, the applicant was convicted of a number of offences (i.e. causing serious alarm (fighting in the street and hotel) assaulting police and resisting arrest). The applicant was fined $150 for two offences and he entered into a recognisance to be of good behaviour for 12 months in regard to the serious alarm offence. In February of that year the applicant was also convicted of an offence of driving with a high range prescribed concentration of alcohol.
In May 1985, a first instance warrant regarding domestic violence was issued by the Court. It would appear the applicant was subject to a Domestic Violence Order, the conditions of which included not to approach his wife at her address while he was under the influence of intoxicating liquor. Two months later, in July 1985, the applicant was convicted of assaulting his wife. Again the Court deferred sentence on the condition the applicant entered into a recognisance to be of good behaviour for 12 months.
In October 1988, the applicant was charged with an offence of assaulting his wife. The charge was subsequently dismissed.
In March 1990, the applicant was convicted of an offence of malicious damage. Again his sentence was deferred on the condition he entered into a recognisance to be of good behaviour for twelve months.
In May 1990 the applicant was convicted and fined on two charges of resisting arrest and a charge of offensive language. In August 1992 the applicant was convicted and fined on another offensive language charge. And in January 1993, the applicant was convicted for breaching an Apprehended Domestic Violence Order. Again the protected person was the applicant's wife. The applicant was fined $200.00 in regard to this breach.
In the course of the respondent's enquires, very little, if any, information was produced in regard to the circumstances surrounding the 1982 to 1993 charges and convictions. Nor did the applicant give any evidence in this regard. His standard answer was that he did not remember. However, what is apparent from the material is that in this period the applicant's offending conduct seems to have arisen at times when he was intoxicated.
The matter which is of greatest concern to the respondent is the offence of which the applicant is charged in early 2000. He was charged with indecent assault where the victim was under the age of 10 years contrary to s 61M(2) of the Crimes Act 1900. The victim was the applicant's eldest grandson, who was 7 years of age at that time.
The records of the Court show that the charge was dismissed. I note the Court Charge Cover Sheet contains the following notation under the offence of which the applicant was charged:
'Issue = intent
No dispute actus reus.'
The events the subject of the charge occurred on the morning of 1 January 2000. A transcript of a Triple 0 call at 05:50am identifies the applicant and his wife having the following conversation with the operator, who is identified as VKG:
'VKG: Police emergency.
Caller 1: Yeh, could you send the police over to [ADDRESS] please.
VKG ....
....
VKG : And what's the problem there?
Caller 1: Uh, just send'em over here please.
VKG: Yeh tell me what the problem is?
Caller 1: Just send'em over here.
VKG: Yeh tell me what the problem is?
Caller 1: If you don't send'em over here I'll just hang up.
VKG : Alright well .....
Caller 1: [applicant's name].
Caller 2 : Yah wanna come because it's child molestin yah wanna send someone now or I'll go over you.
Caller 1: Can ya send him over here please.
VKG : What's the problem there?
Caller 1: Child molesting, the wife said.
VKG : And whose involved in that?
Caller 1: Her husband.
VKG: So that's you.
Caller 1: Yeh that's me.
(A lot of background noise with a female voice in particular)
Caller 1: Yes I am.
VKG : Who else does this involve?
Caller 1: Me wife.
VKG : And who else?
Caller 1: Me grandson.
VKG : Alright we'll get the police there.
...'
Ten minutes later the son of the applicant's wife called the Triple 0 line. The transcript of that call indicates that there was a lot of background noise and a male voice was heard to say:
'I'll break your ....'
When asked who was 'threatening to break bones' - the son of the applicant's wife said that it was the applicant.
The applicant made a further call to Triple 0 at 6:29am.
In a written statement of Detective Senior Constable Stephen Pearson, he said he attended the home of the applicant and his wife at about 6:30am that morning. He said he spoke with a number of people who were arguing on the front lawn of the applicant's home. This included the applicant and the son of the applicant's wife. The applicant is stated to have been armed with a sharpening steel and the son of the applicant's wife was armed with a kitchen knife and they were yelling at each other.
In his statement Detective Senior Constable Pearson said he spoke to the applicant and asked him to tell him what was going on. Detective Constable Pearson states that the applicant said the following:
'Look. I gotta tell ya. I was lying in bed with my wife. We haven't had sex for over three months and I thought tonight I might get lucky. So I reach over like this [indicating a motion with his left hand] and I touched my grandson on his thing, down here, you know [indicating his pubic region]. I want to make a statement about all this alright?'
The applicant's wife also made a statement on this day. In that statement the applicant's wife said that at about 8:00pm on 31 December 1999, she went out with the applicant and her family. She said that she left her two grandsons (then aged 7 and 2 years) in the care of her son who was 27 years of age at that time. The applicant's wife said that they all went to the local bowling club for a New Years Eve celebration. She said they all left together when the band finished playing and she was not sure what time that was but she knew it was after midnight. She said that when they got home the applicant 'was pretty charged up (drunk) and I was pretty tipsy.' She said the youngest grandson was asleep in his cot in their bedroom and the older grandson was asleep in his bed. She said that in the early hours of that morning she was woken up by the applicant. She said her eldest grandchild was next to her in the bed when she first woke up however he jumped up and got into the younger grandson's cot. She said that some time during the night she had put the younger grandson into their bed. She said the applicant touched her on the shoulder and she woke up straightaway. She said he was crying. She said that the older grandson was in the younger grandson's cot by this time. She said she was concerned that something was wrong as the applicant was crying. She said 'it had something to do with him [the applicant] doing sexual to [the older grandson]'. The applicant's wife went on to say she had the following interchange with the applicant:
'I said, "Is it to do with [name of older grandson]?"
He said, "I didn't mean it, I thought it was you."''
At the end of the statement the applicant's wife said:
'I have fears for the safety of my grandchildren, [names of grandchildren] and because of these fears I do not want my husband [name of the applicant], living in the same house as us anymore. Some of these fears are also based on what I have been told about [name of the applicant] past. I was told by [name of the applicant] aunty when I moved to [name of town] with [the applicant] that [name of applicant] had molested his cousin's son.'
In his oral evidence, the applicant said he did not recollect what had occurred on this day. In his affidavit, the applicant's eldest grandson said he remembered the incident. He said 'At some stage that night I woke up and got into Nan and Pop's bed and went back to sleep, which was normal for me.' He said his brother was sleeping in his cot. He said early in the morning 'Pop touch me in the groin area' and he got up and hopped into the cot with his brother. He said 'Nan was really irate and Pop was really upset. I remember that he kept apologising.' He said he never thought the applicant intentionally tried to hurt him - he thought it was a mistake. He said he never felt unsafe around the applicant, but he did recollect that the applicant had moved out of the house for a while. I have dealt with this in more detail below.
The records of the Police Sex Crime Squad record a number of incidents allegedly involving the applicant that occurred in January 2000. The applicant was asked questions about these incidents in cross-examination - he said they did not happen. As these allegations were not pursued I have not considered these further.
Having regard to the offences of which the applicant was convicted, in my view his total criminal record is serious. His conviction for buggery and carnal knowledge are the most serious as they involved a child. This offending was followed by a number of offence involving violence, including domestic violence. These, I have noted appear to have been committed while intoxicated, but there is no evidence of the offences of the earlier kind having been committed again. While finding that the applicant's overall criminal conduct was serious, I also note it has been more than 20 years since the applicant was convicted of an offence.
(i) the likelihood of any repetition by the applicant of the disqualifying offence and the impact on children of any such repetition
In his assessment of the applicant Mr Tyrer stated that the applicant scored a 5 on the STATIC-99 Risk Assessment Instrument. In this regard he said:
'Based upon the STATIC-99 score, this places [the applicant] in the Moderate-High risk category relative to other adult male sex offenders. Based on a review of other risk factors in this case I believe that this STATIC-99 score over represents [the applicant's] risk at this time. The other risk factors considered that support this conclusion are his age in general, chronic poor health, with a deteriorating prognosis, and the duration and positive influence of a cessation of alcohol use. There are no convictions recorded of any type since 1993. These factors might point towards a lower risk assessment.'
Mr Tyrer went on to identify the following protective factors relevant to the applicant re-offending:
(a) No alcohol consumption in the last 14 years,
(b) No convictions of any type recorded in the period that his grandsons have been in his care,
(c) The applicant appears to have been co-operative in every instance of police investigation and no other sexual offences have been identified, and
(d) The applicant appears to have the respect and love of his grandsons, which was directly observed by him (Mr Tyrer) during his work with the family between 2000 and 2002.
Mr Tyrer then identified the following, which in his opinion, were risk factors relevant to the applicant's reoffending:
'The most serious factor, in my view is the historical abuse against a 5 year old member of the extended family who raised [the applicant]. The other two incidents also raise varying degrees of concern, although the first appears to have been non-exploitive between two parties of relatively similar age. The second incident culminated in a Court finding not guilty.
There is a substantial period (1982-1983) in which a number of convictions, including non-sexual violence occurred. [The applicant] acknowledges that this was a period of heavy alcohol abuse and generally poor functioning. He attributes most of the legal trouble that he had during that period to the influence of alcohol.'
In his conclusions and recommendations Mr Tyrer said:
'....[psychometric] assessment places [the applicant] in the Moderate-High risk category for reoffending. The dilemma in making this assessment is that the facts and clinical judgment would suggest there are two distinctly different periods that must be examined in order to draw any useful conclusions. The period following the early convictions includes all of the factors that have contributed to the Moderate-High risk category. The last 14 years involved none of those factors. So are we to judge [the applicant's] risk based on his earlier history or the evidence of the last 14 years? It would be my contention that 14 years represents a period of sufficient length to make confident conclusions about future behaviour, and that the likelihood of risk of harm is relatively low, and further reduced by additional factors such as increasing age, declining health, reported minimal contact with any other children.'
Mr Tyrer also argued that consideration should also be given to the specific risks to the applicant's youngest grandson should the applicant be refused a working with children check clearance. In my view this is not a factor relevant to this application. However, to the extent that there are no adverse reports or findings against the applicant in regard to his care for the youngest grandson, this is a factor to be taken into account when determining risk to the safety of children.
Ms Lowson, counsel for the respondent submitted that the tribunal could not be satisfied that the applicant would not reoffend. She submitted that the opinions of Mr Tyrer should be rejected because of his prior involvement with the applicant and his family. That is, having been their treating psychologist in 2001 and 2002, he could not be seen to have brought an altogether objective mind to the matter. She also submitted that the applicant's failure to explain what occurred on 1 January 2000 and why the charge was subsequently dismissed gave rise to an ongoing concern about a risk of the applicant reoffending.
During cross-examination, the applicant asserted a number of times that he had no recollection of events, including those that occurred in 2000. Ms Lowson submitted the applicant's asserted memory loss was disingenuous. She also submitted that the applicant's failure to explain how he in fact manages his abstinence from alcohol was of concern.
I accept that the applicant suffers from a heart condition as this is referred to in the papers. I also accept the applicant may not fully recollect what happened many years ago, but it is difficult to accept, in the absence of any medical evidence about memory loss, that he did not recollect the events of 2000. Hence, I was left with the impression that there was some reluctance by the applicant to be fully frank. Whether this was due to a misunderstanding about the protective nature of these proceedings is not clear. At the same time he has been legally represented throughout the proceedings where I have made it clear that they were protective and not punitive.
While Mr Tyrer had been appointed by the Department of Family and Community Services to work with the family after the January 200 incident, I do not believe this is a basis to reject his evidence. However, it is a factor to be considered when deciding what weight to be placed on the opinions he has expressed in his report about risk of harm. These opinions are in any event not conclusive.
On the material before the tribunal, I share the concerns of the respondent in regard to the January 2000 incident. In the absence of any explanation from the applicant or his wife, who was present throughout the hearing, the material before the tribunal supports a finding that the event did in fact occur. As noted above, the contemporaneous records indicate the applicant's wife immediately presumed that the applicant had engaged in some form of sexual conduct. Its occurrence was also regarded sufficiently serious for the applicant to have been required to not reside at the home for two years and the applicant's contact with the grandchildren was restricted for some time. While the evidence of the applicant's grandson is that he now believes what happened was a mistake, this is not how it was regarded at the time.
In a report dated 15 December 2001, Mr Tyrer recommended that the boys' best interests was for the applicant's access to be expanded from four afternoons per week to five and for weekend contact to commence to allow the applicant to be part of the boys' weekend activities. Mr Tyrer noted that the applicant's wife supported this plan and that she had reiterated her undertaking not to leave the boys unsupervised with the applicant. This recommendation was made almost 2 years after the January 2000 incident.
As I have noted, the applicant's offending conduct in the 80s and early 90's appear to have been committed while he was intoxicated. In a pre-sentence report, prepared by the Probation and Parole Service, in regard to the applicant's 1988 PCA offence, it was noted that the applicant admitted to heavy alcohol use which had led to domestic and legal problems. The report goes on to say that the applicant said he was now satisfied that he could control his alcohol use to moderate levels without outside counselling intervention. The applicant was assessed as having presented as a good natured, compliant and quietly determined person who was trying to come to terms with his longstanding marital problems and his current medical condition. It was noted the applicant had a reasonable level of insight into his behaviour and a desire to be self-reliant in dealing with his personal problems. Regrettably, the applicant's convictions in 1989, 1990, 1992 and 1993 do not reflect this. And the inference is that the applicant continued to drink heavily thereafter. The applicant asserts he has not drunk since 1 January 2000. Other than this own assertion, the applicant has given no evidence explaining how he reduced his alcohol intake. The applicant's grandson said that to the best of his knowledge the applicant had not drunk since the January 2000 incident. This evidence was not challenged, but the basis of his knowledge is not explained. In any event, I accept that the applicant does not consume alcohol to the extent he did previously. However, as pointed out by Mr Tyrer, this remains a risk factor for the applicant - what is not known is the level of that risk.
In the absence any further offending of the kind that occurred more than 44 years ago, in 1968 and 1970, I find that the likelihood of the applicant committing offences of this kind in the future are low. However, I am not satisfied that the applicant demonstrated any insight into his offending conduct. I am also not satisfied that the applicant has established that the likelihood of committing an act similar to that which occurred in 2000 is low. I make this finding primarily on the basis of the onus being on the applicant and his failure to provide an explanation of his insight into earlier offences and what occurred in 2000.
(j) any further information given by the applicant
The applicant did not put before the tribunal any further material other than that which has already been mentioned.
(k) any other matters that the respondent considers necessary
There was not further material relied on by the respondent.
Conclusions and Orders
The role of the tribunal is not to determine whether the applicant is suitable to be authorised as a carer of his grandson. As I have noted the role of the tribunal is to determine whether the applicant has discharged his onus as set out in subs 28(7) of the Act and in doing so it must have regard to the requirement set out in s 4, the matters in subs 30(1), that a working with children check clearance would authorise the applicant to work in any child related work and that a clearance cannot be made subject to conditions.
In summary my findings are that the applicant's disqualifying offence and the earlier offence of buggery are the most serious as they involved a child. I also find that the applicant's overall criminal conduct is serious. As the disqualifying offence and the offence of buggery were committed more than 44 years ago, I find that the likelihood of the applicant committing further offences of this kind is low. However, I am not satisfied that the applicant has established that he has any insight into his earlier offending conduct or his conduct on 1 January 2000. There is no doubt that the incident on 1 January occurred - it involved a child and a charge was laid against him. Although the applicant was not convicted of the charge steps were taken as his behaviour led to concerns about him posing a risk of harm to his grandchildren. Hence, in the absence of the applicant giving some evidence about his insight or explanation about the events of 1 January 2000, I find that the applicant has failed to rebut the statutory presumption that he poses a risk to the safety of children.
Accordingly, the appropriate order is to refuse the applicant's application for an enabling order.
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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: 31 October 2014
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