BMZ v Children's Guardian

[2015] NSWCATAD 81

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BMZ v Children’s Guardian [2015] NSWCATAD 81
Hearing dates:	18 February 2015
Decision date:	22 April 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior member
Decision:	The Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offence of sexual intercourse without consent of which he was convicted at the District Court at Lismore on 16 May 1997. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the Applicant a Working with Children Check Clearance.
Catchwords:	ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - whether applicant has discharged his onus to establish the contrary – meaning of risk –
Legislation Cited:	Family Law Act 1975 (Cth) Child Protection (Working with Children) Act 2012 NSW Crimes Act 1900 NSW Civil and Administrative Tribunal Act 2013 NSW Commission for Young Children and Young People Act 1998 Evidence Act 1995 NSW
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Category:	Principal judgment
Parties:	BMZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: R Lee (Respondent) Solicitors: BMZ (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410570
Publication restriction:	Section 64(1), Civil and Administrative Tribunal Act 2013 - Restriction against publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Judgment

Background

1. The applicant is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 NSW and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s 6 of the Act.

2. Section 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.

3. The offence which brings the applicant within subsection 18(1) of the Act is that of “sexual intercourse without consent” under s61I of the Crimes Act 1900 NSW of which BMZ was convicted on 16 May 1997 at the Lismore District Court.

4. The notice by the Office of the Children's Guardian informing the applicant of his disqualification for a working with children check clearance is dated 5 September 2014.

5. The application seeking an enabling order is dated 2 October 2014 and was filed on 8 October 2014.

6. In the application BMZ states that he has not committed a criminal offence for over 15 years and is not a threat to children. He states that he requires the clearance so that his fiancé’s daughter can stay in their home. At the time of the application the daughter was in the care of the mother of BMZ’s fiancé. In this decision BMZ’s fiancé will be referred to as Ms A.

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

8. In an application filed with the Tribunal on 2 December 2014 BMZ sought a stay of the operation of the decision of the Children’s Guardian. That application was refused at a hearing held on 18 December 2014. No reasons were issued for the decision to refuse that application.

9. The hearing was conducted at Coffs Harbour on 18 February 2015. The hearing was conducted in person, though Mr Richard Miller, a psychologist, gave his evidence via telephone without objection by any of the parties.

10. BMZ has a hearing impairment and during the hearing he also appeared to have some difficulty understanding complex questions that were put to him. Counsel for the respondent agreed to BMZ being assisted in presenting his case by Ms A who also questioned him under oath. When questioned under oath by Ms A, BMZ said that he had not understood all the questions put to him by counsel for the respondent.

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

12. 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 clearance.

13. 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.

14. In his written submissions, counsel for the respondent notes that the words “well-being” of children did not appear in the Commission for Young Children and Young People Act 1998 and that their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children.

15. I accept the observations of counsel, though note that the Act adds to those words, that “in particular” protecting children from “child abuse” is the paramount consideration.

16. The Act does not define “abuse”. However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows:

"the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence."

17. Section 4(1) of the Family Law Act 1975 defines "abuse” as

1. “an assault, including a sexual assault, of the child; or

2. a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

3. causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

4. serious neglect of the child."

18. These provisions support a view that the concept of ‘child abuse’ includes physical and sexual assaults as well as actions which are likely to cause psychological harm.

19. Subsection 28 (1) of the Child Protection (Working with Children) Act, makes provision for applications for an enabling order.

20. Subsection 28(7) of the Child Protection (Working with Children) Act, 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.

21. In his written submissions counsel for the defendant cites the opinion of L Goodchild, Judicial Member, in the matter of VR v Commission for Children and Young People [2012] NSWADT 83 (at [10] ) in respect of the burden of proof under the previously applicable Commission for Children and Young People Act 1998, and submits that the proof provided by the applicant must be sufficient to persuade the Tribunal of the non-existence of the presumed fact of the applicant posing a risk to the safety of children.

22. I have considered this submission and do not believe that it adds to the formulation put in paragraph 20 above, that the onus is on the applicant to prove, on the balance of probabilities, that he does not pose a risk to children.

23. The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His Honour states that the sole criterion should not be to protect children from “any possibility of abuse”. 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.”

24. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the Commission for Children and Young People Act 1998 to have the same meaning (see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]).

25. Taking into account all of these matters, I am satisfied that the meaning of “risk” is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that 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.

26. 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:

1. 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;

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

3. the age of the person at the time the offences or matters occurred;

4. 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;

5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person;

6. whether the person knew, or could reasonably have known, that the victim was a child;

7. the person’s present age;

8. the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred;

9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition;

10. any information given by the applicant in, or in relation to, the application.

11. any other matters that the Children’s Guardian considers necessary

27. 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 minimise possible risks to the safety of children.

The Evidence

28. The applicant tendered into evidence without objection:

1. A Statutory Declaration made and affirmed by BMZ on 15 December 2012.

2. A Statutory Declaration made and affirmed on 15 December 2014 by Ms A.

3. A Psychological Report dated 15 December 2014 from Richard Miller, a psychologist.

4. A bundle of documents comprising three references on behalf of BMZ.

5. An affidavit sworn by BMZ on 10 November 2014

6. A letter dated 5 December 2014 from psychologist Mr Richard Miller.

29. The respondent tendered into evidence without objection:

1. A bundle of documents tabbed 1 through to 10 comprising:

1. Notice of Disqualification for a Working with Children Check

2. Application to NCAT for an enabling order and application to NCAT for a Stay

3. Letter from the applicant responding to a letter from the office of the Crown Solicitor

4. Criminal History of BMZ

5. NSW Police Force Sex Crimes Squad documents provided pursuant to a request made under s.31 of the Child Protection (Working with Children) Act 2012

6. Documents from the District Court, Lismore provided pursuant to a request made under s.31 of the Child Protection (Working with Children) Act 2012

7. Documents from Corrective Services NSW being a report dated 15 May 1997 from Mr Allan Andreasen, a psychologist, provided pursuant to a request made under s.31 of the Child Protection (Working with Children) Act 2012

8. Documents from Boral Timber provided pursuant to a request made under s.31 of the Child Protection (Working with Children) Act 2012

9. An envelope returned to sender having been addressed to Bailey’s Jackhammering.

2. A further bundle of documents comprising:

1. Documents from Casino Local Court.

2. Documents from Kyogle Local Court

3. Documents from Family and Community Services.

4. A request to Family and Community Services for further information.

Consideration

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

30. The offence of which BMZ was convicted and with respect to which he is a disqualified person is one of sexual intercourse without consent pursuant to s61I of the Crimes Act 1900 (NSW).

31. In a Police Record of Interview made on 28 July 1996 BMZ states words to the effect that that he engaged in sexual intercourse with the victim, but that this was with her consent.

32. The Police Statement of Facts in respect of the matter includes information to the following effect:

1. On the afternoon of 25 July 1996 BMZ and others were drinking alcohol throughout the afternoon and evening at a local hotel and at the victim’s home.

2. The victim’s partner arrived home from work at approximately 11:00pm and witnesses allege that at around this time BMZ became aggressive, slamming doors, throwing things and punching walls.

3. The victim left the house but returned at approximately 1:30am and went to bed at approximately 2:00am.

4. BMZ, the victim’s partner and another male also left the house and went looking for the victim. During that time it is alleged that BMZ was aggressive and kicked a fence damaging a gate.

5. Shortly after 2:00am BMZ and another male arrived at the victim’s home and then the other male left.

6. At approximately 3:00am the partner of the victim arrived home and went to bed in the spare bedroom of the house.

7. The victim states that sometime between 3:00am and 5:00am she was brought fully awake by someone guiding her hand onto a penis. She recognised that person as BMZ and he pushed her onto her back and forced her legs apart, inserted his erect penis into her vagina and moved it in and out. Whilst doing this he attempted to kiss her and also attempted to insert his fingers into her vagina and anus. He also reached under her top and “groped” her breasts and stomach.

8. The victim was initially calm and attempted to persuade BMZ to stop, but when she realised this was in vain she began to cry and to call for her boyfriend.

9. BMZ then withdrew his penis and said he would go and find the victim’s boyfriend.

33. Despite his description of the sexual intercourse as consensual in his police record of interview, BMZ pleaded guilty to the charge of sexual intercourse without consent.

34. During this hearing BMZ continued to claim that the sexual intercourse had been consensual. He denied using any force against the victim during the sexual intercourse.

35. Whilst BMZ continues to assert that the sexual intercourse was consensual I note that he pleaded guilty to the offence of sexual intercourse without consent and I am not in a position to re-examine his guilt or otherwise.

36. In respect of this offence BMZ was sentenced to a minimum term of imprisonment of 2 years commencing on 15 May 1997 and expiring on 14 May 1999, an additional term of 2 years expiring on 14 May 2001. He was ordered to be under the supervision of the Parole Service upon his release for as long as considered necessary.

37. I am of the view that the sentence imposed on BMZ indicates that whilst the court did not view this offence of the worst of its type, nor was it viewed as belonging to the least serious of offences of this nature.

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

The period of time

38. The offence was committed on 26 July 1996 which was approximately 18.5 years ago.

Conduct since the offence – alcohol use

39. Police interviews conducted with the victim of the index offence, BMZ and others who were present during the evening preceding the index offence contain statements to the effect that during that time BMZ consumed a large amount of alcohol. Interviews with the victim and others present during the evening also allege that over that time BMZ was acting in an angry or aggressive manner. In the police record of interview and during this hearing BMZ denied that this was the case.

40. In his report dated 15 May 1997, Mr Allan Andreasen, a clinical consulting psychologist who provided a report to the (then) Legal Aid Commission refers to BMZ’s use of alcohol including the following matters:

1. BMZ said that his involvement in the offence was primarily due to alcohol and that when he drank alcohol he “started going off”.

2. BMZ said that he went to Alcoholics Anonymous at the urging of his then boss but that it was of limited assistance to him because due to his hearing impairment he was unable to hear all that was said during the meetings.

3. BMZ also attended two or three sessions with a counsellor but he couldn’t hear properly and was not able to understand the counsellor.

4. BMZ said that when he didn’t drink he was a “different person” and that when he drank he had “anger in him”.

5. The father of BMZ said that BMZ always had trouble when he drank alcohol.

6. In the opinion of Mr Andreasen, BMZ demonstrated a “real problem with alcohol where he keeps on drinking, he gets intoxicated and his anger is expressed in violent behaviour”.

41. During the hearing BMZ agreed that he had attended Alcoholics Anonymous at the urging of his then boss, but could not remember the year in which he attended. He said that he has not attended other counselling regarding his use of alcohol.

Conduct since the offence – attitude to the offence

42. Despite his assertions that the sexual intercourse was consensual BMZ makes a statement in a statutory declaration dated 15 December 2014 that “there is not a day that goes by when I do not regret my actions on that night When questioned about this matter during the hearing he was not able to explain these words in the context of his denial of the offence. However when addressing the Tribunal in the nature of submissions BMZ said that he regrets having had sexual intercourse on the night of the index offence and that he should have left the room.

43. In his oral submissions counsel for the respondent submitted that BMZ’s response under cross-examination in relation to his statement of regret was “evasive”. However as noted above, BMZ had a hearing impairment and also appeared unable to properly understand complex questions put to him. I am not convinced that his failure to respond to this question was evasive rather than reflecting his inability to properly understand the question. I am of the view that his statement about this matter in the way of submissions is a reasonable explanation of his position.

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

44. BMZ was aged 22 years and nine months at the time of the 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; the difference in age between the victim and the person and the relationship (if any) between the victim and the person and whether the person knew, or could reasonably have known, that the victim was a child.

45. The victim was 17 years old at the time of the offence. Accordingly there was approximately six years difference in the age of BMZ and the victim. The victim of the offence was known to BMZ as she was living in a de-facto relationship with his friend.

46. In his statutory declaration dated 15 December 2014 BMZ states that he believed the victim to be 23 years old, or the same age as him and his friends, and that she “looked and acted as though she was in her early twenties”. During the hearing BMZ again denied knowing the age of the victim and said that he thought she was aged in her early twenties and she looked as if this were the case.

47. In his submissions counsel for the respondent submits that it is unlikely that BMZ did not know the age of the victim as he had been a friend of the victim’s partner since primary school and had visited their home prior to the index offence. He submits that BMZ’s claim that he did not know the victim’s age goes against his credit and breaches the requirement set out in ss 28(5) of the Child Protection (Working with Children) Act that the applicant fully disclose all matters relevant to the application.

48. I am of the view that it was unlikely that BMZ did not know at least the approximate age of the victim.

49. In his oral submissions counsel for the respondent submitted that offence constitutes a betrayal of trust by the applicant who was a friend of the partner of the victim and that the victim was in a vulnerable position at the time of the offence as she was in her bed when the applicant went to her bed and used some force to commit the offence.

50. I accept that the victim was in a vulnerable position having gone to bed in her own home, and according to her statement and that of BMZ, she was asleep when BMZ entered her bedroom. I note that during the current hearing BMZ said that the victim was not asleep when he entered the bedroom and that he had a conversation with her. However in reaching a decisions on this point I have placed more weight on the consistent statements on this matter made nearer the time of the offence by both BMZ and the victim of the index offence.

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

51. The criminal history of BMZ comprises the following offences referred to by date of charge:

1. 16/12/1993 – Assault Occasioning Actual Bodily Harm – 12 months recognizance under (the then) s.558 Crimes Act 1900 and ordered to pay $46 court costs.

2. 24/01/1994 – Assault – fined $150 and ordered to pay court costs of $46. Apprehended Violence Order issued

3. 2/10/1994 – Malicious Damage and Malicious Destruction – fined for two matters and one charge of malicious damage dismissed and Breach of Apprehended Violence Order dismissed under (the then) s.556A Crimes Act 1900.

4. 21/01/1995 – Malicious Damage and offensive behaviour – fined $100

5. 12/04/1997 - hindering police - fined $100

6. 12/04/1997 - being on enclosed lands - dismissed under the (then) s556A of the Crimes Act 1900.

52. The police facts in relation to the 1993 charge of assault occasioning actual bodily harm include statements to the effect that at the time he committed the offence BMZ was intoxicated and was acting aggressively. When questioned about this matter by counsel for the respondent, BMZ admitted to having drunk alcohol at the time but said that he did not recall how intoxicated he was. He also said that he acted in self defence.

53. The 1994 assault charges were in respect of an assault upon a young female victim then aged 14 years. Under cross examination BMZ denied ever hitting the victim. He also said that he did not know her age at the time and that when he became aware of her age he “got out of” the situation. He also claimed that the victim went back to court and had the apprehended violence order rescinded.

54. The breach of AVO matter involved BMZ being in the company of the young female, who was the victim of the 1994 assault matter, in contravention of that the apprehended violence order. Under cross examination in the current hearing BMZ said that the protected person was in his vehicle at the time, rather than him going to her, she had come to him.

55. The 1994 malicious damage/destruction matters occurred on the same day as the breach of AVO. According to the police statement, BMZ was intoxicated at the time of the malicious damage/destruction offences. Under cross examination BMZ said that he could recall one of the incidents but not the others.

56. During the hearing BMZ was cross examined about the offences of hindering police and being on enclosed property and said that at that time he had been in a hotel and urinated when leaving the hotel via a commonly used pathway. He denied arguing with police about their right to be present at the site of the offence.

57. During cross examination BMZ was questioned about a report to police by an unnamed female on 21 March 1996 that BMZ had stalked her, assaulted her and had attempted to set her on fire. He said he had no memory about any of these matters.

58. In relation generally to questioning about his past criminal history, BMZ said that he admitted to doing “silly things” but that since 1996 he has changed his ways and put his life on a good track.

59. A document dated 12 July 2013 and headed Written Warning refers to allegations of “bullying and harassment” by BMZ of another employee at his previous place of employment. The document refers to allegations that he threw a small piece of timber at the employee hitting his safety glasses, and on another occasion held an open Stanley knife behind the employee’s leg. An investigation by BMZ’s employer concluded that he had held the Stanley knife as alleged. The incident is described in the document as “serious and unacceptable” and BMZ was issued with the written warning and advised that failure to improve in this area, or further performance or conduct issues could result in the termination of his employment.

60. When cross examined during the hearing about these allegations BMZ denied that he had behaved in the manner described.

61. When subsequently referring to these matters by way of submissions, BMZ submitted that they were not of sufficient importance to have him dismissed. He said under oath words to the effect that he left the previous place of employment in December 2014 of his own accord. In his statutory declaration dated 15 December 2014 he states that he and Ms A had relocated to be near Ms A’s mother who has care of Ms A’s daughter.

62. BMZ provided the Tribunal with a signed written reference dated 4 November 2014 from a fellow worker at his previous place of employment where the Written Warning was issued. The referee states that he has known BMZ for ten years and has found him to be an “honest and caring person”.

63. Counsel for the respondent submitted that matters referred to in the Written Warning should be given some weight because the employer conducted investigations into the allegations including taking into account BMZ’s views, before issuing the warning. He submits that these incidents indicate a lack of maturity on the part of BMZ.

64. During the hearing counsel for the respondent questioned BMZ about a copy of a file note dated 13 October 2014 contained in records provided by Family and Community Services. The note refers to a call from a person whose name has been excised from the copy. The caller alleged that BMZ and Ms A had a serious drinking problem and that when BMZ was asked not to drink near Ms A he went and bought home brew ingredients. The caller also alleged that BMZ had “got nasty” with some people in the past and made them afraid and as a result they had locked themselves in the house.

65. BMZ denied these allegations and saying words to the effect that they were ‘absolutely wrong’ and “dead set false” and that he and his partner do not drink alcohol.

66. Counsel for the respondent conceded that only limited weight can be placed on these untested allegations by an unknown person and I have afforded them little weight in assessing the conduct of BMZ since the index offences.

67. In his oral submissions whilst noting the BMZ has said that he no longer uses alcohol, counsel for the respondent submitted that it is difficult to prove a negative and that it is a matter of concern that BMZ has not seen a therapist in relation to his use of alcohol.

68. In his final submissions BMZ submitted to the effect that his abstinence is reflected by the lack of police notice since 1997.

69. As noted above, in his report Mr Andreasen assessed BMZ as having a “real problem” with alcohol in that when he keeps on drinking “he gets intoxicated and his anger is expressed in violent behaviour”. The police facts regarding the offences committed by BMZ in the 1993, 1994, 1995, 1996 and 1997 support the view that alcohol played a part in their commission. Taking into account the role played by alcohol in BMZ’s previous criminal history I am satisfied that there is some weight in the submission that if BMZ’s consumption of alcohol continued to be problematic that would be reflected in some adverse police notifications. However I have been provided with no evidence of such notifications since 1997.

70. In his submissions counsel for the respondent submits that up until 1997 BMZ behaved violently on a number of occasions, including his conduct on the evening leading up the offence. He submits that whilst there are no recorded incidents of violence from 1997 until the incident at his workplace resulting in the Written Warning, that incident and the matters referred to in the report to Family and Community Services indicate that his tendency to violence has continued.

71. As noted above, counsel for the respondent conceded that little weight could be placed on the allegations contained in the Family and Community Services report as the allegations are untested and their source undisclosed and he stated that he was not pressing that point in his submissions. I accord those allegations little weight for the reasons stated.

72. In cross examination of Mr Miller, counsel for the respondent asked whether acts of violence in front of children or condoning of violence could be harmful to children and Mr Miller agreed that they could be harmful.

73. I am of the view that BMZ’s violent behaviour in the workplace is relevant to assessing whether or not he would pose a risk to children. However I am also mindful that there are no other allegations of workplace violence by BMZ in the 18 years since the index offence. I note also that the only offences recorded against BMZ since the index offence are the charges in 1997 of being on enclosed lands, which was dismissed under the (then) s.556A of the Crimes Act 1900, and of hindering police which relates to the same set of circumstances, and which was dealt with by a small fine.

74. Taking these matters into account, I am of the view that on balance, BMZ’s criminal record and evidence regarding his conduct since the offence, does not support a conclusion that BMZ would pose a risk to children greater than that of any adult.

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

75. The report of Mr Allan Andreasen dated 15 May 1997 was provided to the (then) Legal Aid Commission of NSW in relation to the sentencing of BMZ. The report is based on one clinical interview and tests of intellectual functioning and social comprehension. Mr Andreasen provides information and opinion to the following effect in addition to the matters outlined above in relation to BMZ’s use of alcohol:

1. BMZ’s performance on tests of intellectual functioning revealed a score consistent with borderline intellectual disability and his functional capacity appeared less than his intellectual ability probably due to his limited education.

2. BMZ’s comprehension of social realities, understanding of cause and effect, his social judgement and his evaluation and use of past experience were impaired, possibly because of his hearing problem as well as his intellectual difficulties. As a result his actual level of functioning was probably within the intellectually handicapped range.

3. It is likely that BMZ was constantly frustrated by his inability to have ordinary friendships which resulted in anger and dissatisfaction. His use of alcohol was likely to be an attempt to avoid those feelings and resulted in the violence exhibited in his prior criminal convictions.

4. It is likely that BMZ’s limited understanding of personal situations resulted in him believing that the victim of the index offence was “interested in him” because she had contacted him a number of times.

5. In the opinion of Mr Andreasen, BMZ had “virtually no insight nor any great capacity for insight into his behaviour”.

76. In his oral submissions, counsel for the respondent submitted that BMZ’s assessed difficulties in understanding personal situations is not limited to sexual matters and is reflected in the recorded incident at his previous place of employment resulting in the issuing of a written warning.

77. Counsel for the respondent also submitted that BMZ’s lack of insight into his behaviour is reflected in his comments during the hearing that he was not to blame in relation to the breach of the apprehended violence order because the protected person came to him. Counsel submitted that this represents “blame shifting” on the part of BMZ and that this presents a risk in that he might blame a child for actions that resulted in him transgressing acceptable behavioural limits sexually or otherwise.

78. Counsel for the respondent also submits that BMZ has engaged in offence minimising behaviour as evidenced by his comments in the police record of interview that the victim had consented to sexual intercourse and his comments to Mr Andreasen that the victim had contacted him a number of times. I accept that this might be the case, but I was not presented with any evidence that offence minimisation is shown to contribute to an increased likelihood of reoffending in respect of this type of offence.

79. In an affidavit sworn on 10 November 2014 BMZ states that for ten months in 2011 – 2012 when he was in a former relationship he cared for the daughter of his then partner from after school until her mother returned home late at night and also during that time assisted the son of his then partner to complete the Kokoda Challenge including being a volunteer with five other couples to set up check points for children and supplying and cooking food for the children. He states that he has remained on good terms with his former partner since their separation.

80. Annexed to the affidavit of BMZ is a reference from BMZ’s sister in which she states that she has fostered 10 children and at the time of writing she had 2 children in her care and she and her husband had adopted a child. She states that BMZ has always been welcome to visit her and the children and that she has never known BMZ to harm a child. She also describes BMZ as “dependable, reliable and honest” and as having integrity.

81. In his affidavit BMZ also states that he met Ms A in January 2014 and that her mother works for Family and Community Services as a Child Protection Caseworker. Annexed to the affidavit is a reference from Ms A’s mother in which she states that she has never seen BMZ behave in a hostile or aggressive manner. She states that she is aware of his past history but believes that “time and maturity” should be taken into account.

82. Ms A’s mother gave sworn evidence during the hearing. She said that she previously worked for Family and Community Services and resigned because of her belief that the Department did not always act in the interests of children. She said that she has also worked as a tutor in Children’s Rights at Southern Cross University. She said that she has known BMZ for 12 months and has no concerns about him being with children.

83. The applicant tendered into evidence reports dated 5 December 2015 and 15 December 2015 compiled by Mr Richard Miller. Mr Miller also gave sworn evidence during the hearing. Miller said that he has been registered as a psychologist for some 30 years and has been in private practice for some 8 years.

84. The report dated 5 December 2014 is based on two interviews with BMZ and states that BMZ appeared to be of average intelligence, with no mood or affect abnormalities and with no evidence of mental illness. He appeared “open and honest” in the interview. Mr Miller also opines that an order allowing Ms A’s daughter to visit over the Christmas period would pose “minimal risk”

85. The report dated 15 December 2014 is based on four interviews with BMZ as well as a referral from BMZ’s doctor, perusal of legal records and reports and a telephone interview with the father of BMZ. The report contains information and opinion to the following effect:

1. BMZ reports considerable contact with children particularly through his sister who has fostered a number of children.

2. Further assessment would be required to indicate whether BMZ would benefit from further psychological intervention.

3. Preliminary investigations suggest the BMZ presents as a low risk to children and it would appear that he has had ample contact with children with positive outcomes.

86. Under cross examination Mr Miller said that:

1. Additional investigations necessary to augment his preliminary opinion included a personality inventory which he had attempted to administer but which returned invalid results due to nervousness on the part of BMZ.

2. He did not consider it necessary to test BMZ’s intellectual capacity as he presented as being of normal intelligence. He was under the impression that BMZ had gained the School Certificate and was surprised by Mr Andreasen’s assessment of BMZ as having borderline intellectual capacity and as functioning within an intellectually handicapped range.

3. In assessing BMZ as being a low risk to children he had taken into account BMZ’s account of contact with his sister's children as well as reports from his family.

87. Under cross examination Mr Miller agreed that:

1. BMZ’s assessment of the outcomes of his contact with children would require that he have an awareness of what might be harmful to children.

2. BMZ might not have that awareness if he was functioning at level of intellectual handicap, which he doubted.

3. It would be harmful to children to act violently or condone violence in front of children.

4. It is not uncommon for people to act differently in front of children who are related to them compared to their actions in front of children who are not related.

88. In his oral submissions counsel for the respondent submitted that little weight should be placed on Mr Miller’s assessment because his reports are the results of preliminary investigations which have not been augmented by additional testing that he considers necessary for a complete assessment. He also submits that Mr Miller’s assessment of the intellectual ability of BMZ should not be preferred to the assessment conducted by Mr Andreasen.

89. In evaluating the weight to be placed on the information contained in the reports of Mr Andreasen and Mr Miller I note that with respect to assessing BMZ’s intellectual capacity Mr Andreasen conducted objective tests whereas Mr Miller based his assessment on clinical observation. I therefore accept the assessment of Mr Andreasen in relation to BMZ’s intellectual functioning at least near the time of the index offence.

90. Whilst I accept that in his evidence under cross examination Mr Miller agreed that a person with impaired intellectual functioning might not be aware of what is harmful to children I note that Mr Miller did not assess BMZ in respect of his understanding of such matters and his comments are a generalisation.

88. In relation to BMZ’s possible awareness of what is harmful to children I note that his sister attests to his ongoing contact with children without incident over some time.

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

92. In a statement dated 15 December 2015 Ms A states that her relationship with the father of her daughter was one of domestic violence in which she feared being beaten or killed and that as result she developed depression. She said that because of nature of the relationship and her depression, her daughter was placed with her mother in August 2014, but that she has generous contact with the child on weekends and during the school holidays. She states that she has undergone counselling in respect of her depression and she intends to apply for the return of the child to her care. She states that her mother supports her desire to be able to have BMZ at home with her in the presence of the child.

93. In his affidavit dated 10 November 2014, his statement dated 15 December and his comments by way of submission during the hearing, BMZ stresses that length of time since the index offence and the lack of criminal convictions since then.

94. In his statement dated 15 December 2015 BMZ states that he does not want to work with children. He states that he and his partner intend to marry in May 2015 and that he and is seeking the enabling order so that he is able to live in the same house as his partner and her daughter.

Any other matters that the Children’s Guardian considers necessary

95. During the hearing BMZ was questioned by counsel for the respondent about his claims made during the hearing that at the time of the index offence he had conversations with the victim of the offence and that she agreed to him entering the bedroom. BMZ was also questioned about whether he told Mr Allan Andreasen that he would have been unable to hear anything said to him in the dark when he was not able to lip-read as is noted in the report of Mr Andreasen dated 15 May 1997. Counsel for the respondent submitted that the purpose of these comments in 1997 was to propose a reason why BMZ would have been unaware that the victim not consenting to sexual intercourse. In his oral submissions counsel for the respondent submitted that the contradictory content of these claims goes to the credit of BMZ.

96. BMZ’s claim during the current hearing that the victim was awake when he entered her bedroom conflicts with the record of interview with the police in which he said that she was asleep when he entered the room, but that she woke up later.

97. Counsel for the respondent also submitted that it goes to the credit of BMZ that during the current hearing he denied guilt in relation to the index offence as well as well as the charge of hindering police in 1997 but had pleaded guilty to those offences when he appeared in respect of them.

Conclusion and Orders

98. In considering all of the evidence I have reached the following conclusions:

1. The offence committed by BMZ was serious. However the overall criminal record of BMZ does not include any other matter of such a serious nature and comprises relatively minor offences that were dealt with by way of small fines, recognisances, and dismissal under the (then) s.556A of the Crimes Act 1900.

2. With the exception of one workplace incident there is no evidence of weight that BMZ’s non-criminal conduct since the time of the offence has been such that he might pose any risk to children. This is despite his access to children of his previous partner and his sister.

3. BMZ’s sister and Ms A’s mother, both of whom have experience in the area of children’s care and welfare, are supportive of BMZ’s application.

4. I accept that BMZ has not undertaken counselling for his alcohol use and is unable to prove that he ceased using alcohol. However, I am of the view that the lack of evidence of any adverse police notice in respect of BMZ since 1997 supports the view that he is no longer using alcohol in a way that affects his behaviour as it did around the time of the index offence.

5. I accept that it is possible that BMZ has some level of intellectual impairment and that it is possible that people with such impairments might be less aware of dangers to children. However in the absence of specific evidence related to BMZ’s current intellectual functioning and level of awareness of dangers to children I place little weight on the generalised proposition about awareness of dangers to children as it applies it BMZ.

6. In terms of its specific application to BMZ I also place limited weight on the generalised proposition agreed to by Mr Miller that people might act differently with children related to them on the one part compared to their behaviour with unrelated children.

7. I accept Mr Andreasen’s view that BMZ’s lack of insight and impaired functional capacity could have contributed to the index offence and that BMZ might not have been able comprehend the social situation at the time. However that report was compiled in 1997 and since then, the only evidence of weight presented to me regarding BMZ posing a risk in social circumstances was the one issue occurring in his previous place of work.

8. During the hearing BMZ was unable to adequately respond to some questions put by counsel for the respondent and I accept that his denial of the index offence and some other offences noted in his criminal record as well as his inability to recall some details of the previous offences goes to his credibility. I believe that to some extent he was attempting to place himself in a more favourable light by some of his responses.

9. Having taken all of these matters into account, including conclusions noted in the body of this decision, I conclude that the evidence before me is sufficient to outweigh the presumption that BMZ presents a risk to children greater than that of any adult preying on a child.

99. Having reached these conclusions I order that:

1. The Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offence of sexual intercourse without consent of which he was convicted at the District Court at Lismore on 16 May 1997; and

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

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: 22 April 2015