BMO v Children's Guardian

[2014] NSWCATAD 226

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BMO v Children's Guardian [2014] NSWCATAD 226
Hearing dates:	1 December 2014
Decision date:	19 December 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	The applicant's applicantion for an enabling order is refused.
Catchwords:	ADMINISTRATIVE LAW - child protection - enabling order - working with children check clearance - disqualified person - disqualifying offence was a conviction in 1978 of attempt to commit rape - subsequent and prior offences - no further disqualifying offence since 1999 - whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children - onus not discharged
Legislation Cited:	Children and Young Person (Care and Protection) Act 1998 Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 Children and Young persons (Care and Protection) Act 1998 Civil and Administrative Tribunal 2013 Crimes Act 1900
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	BMO (Applicant) Children's Guardian (Respondent)
Representation:	Crescent Head Legal (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	1410534
Publication restriction:	Pursuant to subsection 64(1) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of the any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the Tribunal.

reasons for decision

1. The applicant, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an enabling order, pursuant to section 28 of that Act, declaring that he not be treated as a 'disqualified person' so that he can be granted a working with children check clearance under the Act. The applicant is seeking a clearance so that he can resume being the authorised carer of the three children of his adult son and his partner.

1. The applicant is 58 years of age and in very poor health. In March 2013, pursuant to the provisions of the Children and Young Persons (Care and Protection) Act 1998, the Department of Family and Community Services (the Department) placed into the day-to-day care of the applicant and his wife, the three children of the applicant's son (the applicant's grandchildren). The children were aged 10, 8 and 6 years.

1. On 11 December 2013, the Children's Court awarded parental responsibility of the three children to the applicant and his wife.

1. On 18 February 2014, the applicant made an application to the respondent seeking a working with children check clearance. The respondent refused the application, on 7 April 2014, pursuant to subsection 18(1) of the Act. This was a mandatory refusal as the applicant has a conviction for an offence falling within Schedule 2 of the Act (the disqualifying offence). The disqualifying offence was a conviction, in July 1978, of the offence of attempt to commit rape contrary to section 63 of the Crimes Act 1900 (as it applied at that time).

1. Two days after the respondent refused the applicant's application for a working with children check clearance, the Department removed the children from the applicant's care.

1. On 23 September 2014, the applicant lodged this application for an enabling order. He also made an application for a stay of the order of the respondent pending the determination of his application for an enabling order (see subsection 30(2) of the Act).

1. The applicant's application for a stay was heard on 1 October 2014. On this day, due to the sensitive nature of these proceedings, by consent, I made an order under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant and the name of the any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the Tribunal. For this purpose the pseudonym BFU has been used for the applicant's name.

1. I also made an order, by consent, under section 41 of the Civil and Administrative Tribunal Act 2013, extending the time within which the applicant was to file and serve his application to 23 September 2014.

1. After hearing short argument from the parties, I made an order refusing the applicant's application for a stay and made directions for the filing and serving of material by the parties. The applicant's application was also set down for hearing on 1 December 2014.

1. The applicant's application was heard on that day.

1. What was at issue at the hearing was whether the applicant had discharged his onus to rebut the statutory presumption, in subsection 28(7) of the Act, that he poses a risk to the safety of children. It was the contention of the respondent that the Tribunal could not be so satisfied and the making of the order sought was opposed. Of particular concern to the respondent was the applicant's history of domestic violence.

1. At the conclusion of the hearing I reserved my decision. I have now considered all the material before the Tribunal and for the reasons set out below, I am, on balance, at this time, unable to find that the applicant has discharged his onus in rebutting the statutory presumption. I have made this finding as I am not persuaded the applicant has sufficient insight into his violent offending conduct and its effect on children. At the same time, I accept the applicant is very unwell and his ability to undertake child related work is very limited, even that of an authorised carer. However, this alone does not satisfy the requirements of the Act in order to make the order sought (i.e. in effect grant the applicant a working with children check clearance to work in child-related work).

The evidence

1. The applicant tendered into evidence:

• an affidavit sworn by him on 29 October 2014. Annexed to his affidavit is a letter from his treating doctor, dated 23 September 2014,
• an affidavit of his wife, sworn on 29 October 2014,
• a risk assessment report of Mr Allan G Anderson, dated 24 November 2014,
• a bundle of documents relating to the 2013 and April 2014 Children's Court proceedings concerning the applicant's grandchildren. Included in the bundle is a copy of an affidavit of the Manager Casework for the children from the Department setting out the grounds on which the children were removed from the applicant's care.

1. At the hearing, oral evidence was given by the applicant, his wife and Mr Anderson. They were also cross-examined by Ms Mahoney, counsel for the respondent.

1. The respondent tendered into evidence three bundles of documents containing copies of documents that had been provided in the course of inquiries that had been made concerning the applicant. This included the following:

• the applicant's criminal record,
• the police fact sheet concerning the applicant's 1978 disqualifying offence,
• court documents relating to a number of the applicant's convictions for armed robbery (1977), assault (1982), offensive language (1998), high range PCA (1999) and cultivate a prohibited plant (2008),
• records of the applicant's breach of an Apprehended Violence Order in 1994, 1995 (2) and 1999, and
• records from Corrective Services.

The working with children legislative scheme

1. 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.

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

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

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

1. Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in 'child related work' where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

1. The term 'child-relate work' is broadly defined in section 6 of the Act. While it is unnecessary for the Tribunal to determine whether the person seeking a working with children check clearance was engaged in or proposes to engage in 'child-related work', I note that the role of 'authorised carer' is expressly included within the definition of this term in section 6:

6 Child-related work

(1) A worker is engaged in child-related work for the purposes of this Act if:

(a) the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with children, or

(b) the worker is engaged in work in a child-related role referred to in subsection (3).

(2) ...

(3) The following roles are referred to:

(a) ...,

(b) ...,

(c) an authorised carer,

(d) ...,

...

(4) In this section:

direct contact with children means:

(a) physical contact, or

(b) face to face contact.

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

1. 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).

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

1. 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) ...

1. The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [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.'

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

1. 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) ...

1. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.

Consideration

1. As I have noted, the applicant's current health is very poor. He is heavily medicated and relies heavily on his wife, who is his full-time carer. In his letter of 23 September 2014, the applicant's doctor, who has treated him for 15 years, records the applicant as having described his current condition as 'struggling along one day at a time'. This is consistent with my observations of the applicant at the hearing. Nevertheless, I found him to give forthright evidence to the best of his recollection and ability.

1. The applicant is clearly very concerned about the manner in which his three grandchildren were removed from his care in April this year, especially after they had been so readily placed into his care 13 months earlier. He said that he had at all times been truthful and fully disclosed his disqualifying offence and his criminal record. He readily acknowledged his past violent offending, but asserted that since 1999, when he suffered a work injury and was diagnosed as being bi-polar he has not committed any further violent offence. This, he said was due to not drinking any alcohol and also being medicated for his bi-polar disorder.

1. As required, I have considered each of the matters prescribed in subsection 30(1) of the Act and set out below are my findings this regard.

(a) The seriousness of the disqualifying offences

1. The conduct the subject of the disqualifying offence occurred on the evening of 23 August 1977. The applicant, in the company of three other men attended a flat, in Sydney, that was occupied by the complainant (victim). The applicant had a shot gun and one of the other men had a knife. There were other people present in the flat. In September 1977 the applicant was charged with the rape of the victim that night. On the material provided it would appear that two of the men who accompanied the applicant to the flat were also charged with the rape of the victim.

1. The applicant was committed to stand trial for rape in March 1978. However, he was indicted on a charge of attempting to commit rape. He was convicted on 14 July 1978 and sentenced three years and six months imprisonment.

1. There is no question that the disqualifying offence of which the applicant was convicted was very serious. He was in the company of others and had a weapon with him. As noted below, it would appear, arising from events that occurred the previous day and on the night in question, the applicant was also charged and convicted on two counts of armed robbery and a further two counts of assault with intent to rob. I have dealt with these offences below.

(b) The period of time since the disqualifying offence was committed

1. It is 37 years since the commission of the disqualifying offence was committed by the applicant.

(c) The age of the applicant at the time the disqualifying offence was committed

1. The applicant was 21 years of age at the time he committed the disqualifying offence.

(d) The age of the victim at the time the disqualifying offence was committed

1. According to the Police Fact sheet, the victim was 19 years of age at the time the offence was committed. She was not a child for the purpose of the Act.

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

1. On the material before the Tribunal it would appear that there was a two year age difference between the victim and the applicant. There is no evidence of there being a relationship between the applicant and the victim.

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

1. As the victim was not a child, this consideration is not relevant.

(g) the person's present age

1. As I have noted, the applicant is now 58 years of age.

(h) the seriousness of the applicant's total criminal conduct

1. The applicant has a relatively long criminal history. His first recorded criminal offence is one that occurred in April 1975. The conviction was for an offence of indecent behaviour (urinating in the street) for which the applicant was fined $20.00.

1. In 1976, the applicant was found guilty of a number of offences of stealing and break, enter and steal. The applicant was fined in regard to these offences and no conviction was recorded on the condition that the applicant entered into a 12 month good behaviour bond.

1. In December 1977, the applicant was charged and convicted of armed robbery (two counts) and assault with intent to rob (two counts). These offences occurred on 22 and 23 August 1977 - that is, on the day before and on the evening of the disqualifying offence. As I have noted above, the applicant was armed at that time and the offences, in part, related to the applicant's entry into the flat of the victim together with his co-accused. On the material before the Tribunal it would appear that the offending conduct occurred in the context of the applicant and his co-accused searching for heroin. In addition to the rape and attempted rape, they stole money and some other minor items. The applicant pleaded guilty to the armed robbery and the assault with intent to rob offences and co-operated with police. The applicant was sentenced to terms of imprisonment for periods of 3-4 years in regard to these offences. In sentencing the applicant the Court also took into account two further charges of assault and rob.

1. The applicant was released on parole in May 1981 and on the material provided it would appear the applicant's parole order did not expire until July 1988.

1. In February 1982 the applicant was charged with an offence of assault and malicious wounding of a male victim. At the time the applicant had been drinking heavily. He was committed to stand trial for that offence, but was found not guilty and acquitted at trial.

1. The applicant had no further convictions until January 1991. From this date until August 2008, the applicant has been convicted of the following matters:

Date	Description	Sentence
January 1991	Improper use of phone and offensive language on phone	3 months hard labour - periodic detention (applicant appeal - appeal was dismissed)
March 1991	Drive with mid PCA	Fined $400.00 - licence disqualified for 6 months.
August 1992	Assault - the applicant's wife was the victim of this assault	Offence proven but no conviction entered
December 1994	Breach of Apprehended Domestic Violence Order	Fined $200.00
August 1995	Breach of Apprehended Violence Order Malicious damage	Both charges dismissed
January 1996	Breach Apprehended Violence Order (2 counts) Common assault - victim was the applicant's wife	3 months custodial sentence
August 1998	Use offensive language in/near public place/school	Fined $350.00
June 1999	High range PCA - drive motor vehicle	Fined $1,200.00 and disqualification of licence
August 2008	Possess prohibited drug Cultivate prohibited plant - small quantity	Fined $200.00 12 months good behaviour bond

1. The Apprehended Violence Orders were taken out at the request of the applicant's wife. She had commenced a relationship with the applicant around 1981. They have a daughter from this relationship who was born in 1985.

1. In October 1990, the applicant's wife separated from him due to his violent behaviour. The first Apprehended Violence Order was issued in January 1991, with the protected person the subject of the order being the applicant's wife. As I have noted, the victim of the applicant's 1992 conviction of assault was his wife and she required medical attention as a result. At this time, the applicant's wife reported long standing domestic violence by the applicant resulting in a further Apprehended Violence Order being taken out. As noted above, there were a number of breaches of that Apprehended Violence Order which included the applicant punching his wife on the mouth and the side of her face in January 1995.

1. At the hearing of this application, the applicant did not dispute having breached the Apprehended Violence Orders. He also acknowledged that some of his behaviour would have been witnessed by his daughter. However, the applicant insisted that things had changed after his accident in 1999 and after being diagnosed as being bi-polar.

1. In her oral evidence, the applicant's wife acknowledged the applicant had been violent towards her. She said that at no time was this directed at the children. However, she agreed that the children were nevertheless exposed to the violence as they would have witnessed the manner in which he behaved towards her. The applicant's wife said that the domestic violence arose through the applicant's heavy drinking and use of drugs (speed/cannabis). She said the drink and the drugs were the problem, but since 1999 they were no longer a problem. Again she stressed that this was due to the applicant's back injury and also due to him having been diagnosed as being bi-polar and being appropriately medicated. She said he has not drunk since that time, although she did acknowledge that he may have a small beer now and again. She described the applicant as now being calm given his medication and that prior to 1999 he was 'a monster'. The applicant's wife went on to say that today he is not a threat to anybody. She also explained that he sleeps a lot. She said that they had 13 grandchildren altogether and she has never seen the applicant act violently towards them or speak to them in a way which is intended to undermine their confidence. She reiterated that since receiving medication for bi-polar disorder the applicant has been very calm.

1. In regard to the conviction for possessing and cultivating a prohibited drug, the applicant explained that he only had a small amount in his possession. He said it was for his own personal use. The Police Fact sheet states that police found two large 1.5 metre cannabis plants growing in a cupboard in a spare room of a house where the applicant resided. Police also found a large plastic carry bag containing a large amount of dry cannabis leaf and stem and a smaller sealed plastic bag containing dry cannabis and leaf. Police located a small amount of dry cannabis leaf and stem in the garage of the house. The total weight of the drug cannabis amounted to approximately 400gms. The Police Fact sheet went on to note that the bulk of the cannabis was unsaleable leaf and stem. It was noted that the applicant was co-operative and the cannabis they found was obviously there for the personal use of the applicant who readily participated in an electronically recorded interview with police.

1. It was the applicant's evidence that he had grown the cannabis plant as he had found smoking marijuana relieved his severe back pain. In cross examination the applicant's wife gave similar evidence and also said that he has never bought any since that time. However, I was left with the impression that he does smoke some cannabis occasionally as he finds it relieves his considerable pain.

1. Of concern to the respondent is the applicant's history of domestic violence. While there is no record of any recent incident of this kind, the respondent was concerned that there was little evidence of the applicant having any real insight into his offending conduct.

1. Mr Anderson on the other hand said he believed the applicant did have such insight. I have dealt with this in more detail below.

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

1. Mr Anderson has over 40 years experience as a psychologist. He specialises in drug and alcohol counselling, relationship counselling, WorkCover cases, employee assistance programs, mediation and mental health matters including stress management, depression and anxiety disorders. In his oral evidence Mr Anderson explained that he had seen the applicant about four times. In his report he explained that he had administered the Personality Assessment Inventory (PAI) test on the applicant. He said that the test results showed that the applicant was definitely suffering from depression and anxiety. He went on to say that apart from this, the applicant did not show any signs of an aggressive personality and does not have any alcohol or drug issues. Nor did he have any personality disorders and is not a domineering personality and that he figures quite highly on the human wall scale of the PAI. Mr Anderson said the applicant did not show as being paranoid or suffering from any anti-social, borderline or schizoid personality disorders. He went on to say that in his opinion the applicant was a very placid and pleasant man and his personality and his interaction with people generally was warm and open. He said he did not see in any way that the applicant was a risk to other people, including children. In this regard, he noted that there was no history whatsoever of the applicant having harmed children in any way.

1. As I have already noted, during cross examination Mr Anderson said that he believed the applicant did have insight into his past behaviours and that the possibility of the applicant returning to his previous violent behaviour he thought was almost zero. That is, in his view, the applicant was a different person to what he was before in that he has built up a habit of non-violent behaviour.

1. It is the contention of the respondent that the Tribunal cannot be satisfied that such non-violent behaviour will not reoccur. In this regard it was noted that Mr Anderson had not conducted a risk assessment using the Standard STATIC-99 tests together with the dynamic factors.

1. In my view, given my observations of the applicant's current state of health, the likelihood of him behaving in a physically violent or intimidating manner towards others may be low. It is evident that he is very dependent on others for his daily needs. Yet this does not, in my view, mean that the applicant has any insight into his previous violent offending conduct - in particular, its effect on children and what he needs to do to ensure it does not re-occur. That is, his changed circumstances due to his 1999 work accident does not necessarily mean he also acquired insight into his offending violent conduct. Nor is there any evidence to indicate that the applicant's violent behaviour was attributable to his un-diagnosed bi-polar disorder. What is clear is that the applicant has limited, if any treatment to address his previous offending conduct. In this regard the applicant acknowledged that in his more recent counselling sessions with Mr Anderson these were matters which were now being addressed.

(j) any information given by the applicant

1. As I have already noted the applicant and his wife both say he does not pose any risk to his own grandchildren. He loves them and he wants to care for them. He does not understand why they were removed when he was honest and open about his previous offending conduct when the grandchildren were placed into his care.

1. As I explained to the applicant, at the commencement of the hearing, the Tribunal has no power to make an enabling order that is conditional in that it restricts the child-related work the applicant can engage in. Furthermore, even if an enabling order were to be made, the Tribunal has no jurisdiction to also determine whether the applicant should be authorised as the carer of his three grandchildren. This remains a matter for the Department. The only issue for determination by the Tribunal is whether the applicant has discharged his onus and rebutted the presumption that is contained in subs 28(7) of the Act.

(k) any other matters that the respondent considers necessary

1. At the conclusion of the hearing, Ms Mahoney, counsel for the respondent advised that it remained the view that the applicant had failed to discharge the onus imposed on him. That is, the respondent opposed the making of the orders sought.

Conclusions and Orders

1. I reiterate, the role of the Tribunal in this application is to determine whether the applicant has discharged his onus and rebutted the presumption that he does pose a real and appreciable risk to the safety of children because of his past offending violent conduct. While, the applicant has not committed any further disqualifying offences of the kind he was convicted in 1977, he has a number of further offences of a violent nature. These were directed at his wife and on occasion in the presence of his children. Since 1999 there have been no further offences of violence. However, for the reasons I have set out above, I am unable to make a finding that the applicant has any real insight into his violent offending. I accept that Mr Anderson has begun to deal with this issue in his counselling sessions with the applicant. To the extent this is understood by the applicant is difficult to tell.

1. Consequently, having regard to the requirements of section 4 of the Act, I am not satisfied that the applicant has discharged his onus as set out in subsection 28(7) of the Act. Hence, the appropriate order, at this time, is to refuse the applicant's application for an enabling order.

1. Finally, my findings are made in the context of the statutory provisions in the Act, which regulates those persons wishing to engage in child-related work. Whether the applicant poses a real and appreciable risk to his grandchildren in the context of ongoing contact with his grandchildren remains a matter for the Department to determine, where different consideration may apply.

Order:

1. The applicant's applicantion for an enabling order is refused.

**********

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: 19 December 2014