BQF v Children's Guardian

Civil and Administrative Tribunal

New South Wales

Case Name:	BQF v Children’s Guardian
Medium Neutral Citation:	[2015] NSWCATAD 225
Hearing Date(s):	2 September 2015
Decision Date:	28 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Mullane ADCJ Principal Member R Royer General Member
Decision:	(1) The Application of the Applicant for enabling orders is refused. (2) The application of 22 December 2014 is otherwise dismissed. (3) Broadcast or publication of the name or other identifying information of the Applicant, his wife or any victim of any offence of the Applicant referred to in these reasons is prohibited.
Catchwords:	Child protection - Working with Children - enabling application – risk to safety of children.
Legislation Cited:	Crimes Act 1900 Child Protection (Working with Children) Act 2012 Adoption Act 2000 Child Protection (Prohibited Employment) Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	BQF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Ginters (Respondent) Solicitors: John Edmunds Solicitors (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410727
Publication Restriction:	Per Order 3 above. Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Judgment

Introduction

On 14 June 1974 the applicant was convicted in the District Court of East Maitland of carnal knowledge of a child of the age 10 to 16 years, an offence under section 71 of the Crimes Act 1900. He was sentenced to 18 months imprisonment with a non-parole period of 6 months and the sentence was to be served at the expiry of a sentence which he was already serving.
In 2014 the applicant and his present wife assumed care of 3 young children of his wife’s son. The children were placed in the care of the applicant’s wife by the Department of Family and Community Services.
After the children came to live with the applicant and his wife, he was advised by the Department of Family and Community Services of the requirement of the Child Protection (Working with Children) Act 2013 (“the Act”) that he needed to apply to the Children’s Guardian for a Working with Children Check Clearance.
He made his application on 30 September 2014. By letter dated 21 November 2014 the Children’s Guardian notified the applicant that the Children’s Guardian was prohibited by the Act from issuing a Check Clearance to the applicant because of his conviction for carnal knowledge in 1974, which under the Act was a disqualifying offence and prohibited him from working with children, whether it was voluntary or paid.
The applicant filed his application in the Tribunal on 22 December 2014 seeking that the Tribunal make an order that for the purposes of his application for a Check Clearance, the Children’s Guardian disregard the disqualifying conviction and make an order that the Children’s Guardian issue a Check Clearance to the applicant.

The Evidence

The Evidence before the Tribunal comprised; -
(1)The Application to the Tribunal filed 22 December 2014;
(2)Letter of 21 November 2014 from Children’s Guardian to Applicant advising of refusal;
(3)Exhibit TG1 – copy of s71of the Crimes Act as of the date of the offence (22 May 1974);
(4)Exhibit CG2 – Case notes of Dr Hinton;
(5)Letter of 4 February 2015 to the applicant’s solicitor from the Crown Solicitor’s Office;
(6)Letter of 17 February 2015 from the applicant’s solicitor in reply;
(7)CrimTrac Check Results report (Applicant’s criminal record);
(8)Documents from Scone Local Court;
(9)Document from Sydney District Court;
(10)S31 response from the Department of Corrective Services;
(11)S31 response from NSW Police Sex Crimes Squad;
(12)S31 response from iASK;
(13)S31 response from the applicant’s employer from 28 March 2004 to 4 July 2014 when the applicant worked on the fishing boat;
(14)S31 response from the Department of Family and Community Services (with various names redacted);
(15)Character reference from friend of the applicant of 17 years dated 1 May 2015
(16)Undated one page letter from applicant’s wife addressed to “Guardianship Board”;
(17)Undated letter from the applicant addressed to “Guardianship Ship Board”;
(18)Report by Dr Russell Hinton, general adult and forensic psychiatrist, dated 25 August 2015;
(19)Undated reference of applicant’s wife’s son addressed to “Guardianship Board”;
(20)Character reference dated 4 May 2015 by the brother of the applicant’s wife;
(21)Character reference dated 3 May 2015 by director of a Hotel/Motel and friend of the applicant for 17 years;
(22)Undated letter from the Child Protection Social Worker at John Hunter Children Hospital;
(23)Speech Pathology Screening Assessment report of 16 January 2015 in respect of the son of the applicant’s wife’s son;
(24)Wellbeing Assessment of 23 January 2015 in respect of the same child by Kaleidoscope in Greater Newcastle Community Paediatrics;
(25)Child Development Report dated 11 March 2015 in respect to the same child; and
(26)Document setting out particulars of assessment and treatment appointments for the same child in respect of paediatrics, eczema, developmental psychology, speech pathology, audiometry, ear nose and throat specialist, immunisations, and asthma treatment.

Relevant Legislative Provisions

Section 4 of the Act provides:
“The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”
Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in “child-related work” for purposes of the Act.
Section 8 requires that a worker must not engage in child-related work unless the worker holds a “Working with Children Check Clearance” of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an “interim bar”.
Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.
Section 12 provides that there are two classes of Working with Children Check Clearances which are:
a) Volunteer – authorising workers to engage in unpaid child-related work,
and
b) Non-volunteer – authorising workers to engage in paid and unpaid child-related work.
Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance.
Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is “a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult”. The Applicant was born on 20 May 1954 and was 20 (an adult) at the time of the offence. The Act defines an “adult” as “a person who is 18 years of age or older”.
In para 1(1)(i) of Schedule 2 to the Act, offences under s 71 of the Crimes Act, 1900, are included in the specified offences that are disqualifying offences.
Accordingly, the provisions subsection 18(1) of the Act prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the applicant because of the offence in 1974.
Section 28 of the Act provides:
(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.
(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.
(3) A disqualified person may make an application under this section only if:
(a) the person has been refused a working with children check clearance, or
(b) the person’s clearance has been cancelled, because the person is a disqualified person.
(4) The Commission 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 Commission to revoke an interim bar or 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) An appeal lies on a question of law to the Supreme Court by any party to the proceedings.
Section 30 of the Act provides:
(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 Commission considers necessary.
(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter.
Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal.
(3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.

Presumption

Sub section 28(7) applies a presumption in these proceedings that unless the applicant proves to the contrary, the Applicant poses a risk to the safety of children.

Enabling orders cannot be subject to conditions

It should be noted that s 28(8) prohibits making of an Enabling Order that is subject to conditions.

Disclosure

Subsection 28(5) requires the applicant to make a full disclosure to the Tribunal in this hearing of any matters relevant to the application.

The seriousness of the disqualifying offence

The applicant and two other men were 3 members of a motorcycle group that provided promotion within the ranks by various activities including one called “getting your wings”. To obtain this award it was necessary for at least four members of the group to have a sexual intercourse with the same female, one after the other and the applicant for “wings” was required to then “suck out the vagina of the girl”. These acts had to be witnessed by all 4 members.
On 22 May 1974 the three adult men and a juvenile male member of the motorcycle group were drinking at a hotel. A girl they knew who resided in a home with her parents spoke to them at the hotel and invited them to come to the home and join the other young people there who were playing music and fraternising. Her parents were away. The 4 accepted the invitation and rode their motorcycles to the home. The juvenile member of the group had told the others before they went to the home that he intended to “go for” his “wings” that night.
When they arrived at the home, there was a female child amongst the young people who was 12 years of age. The juvenile member commenced interacting with the child. He lay on top of her on the floor and wrestled with her. Eventually he carried her to a bedroom and put her on the bed. He removed her jeans and underpants, pulled his jeans down and had intercourse with her. While he was having intercourse with the child, the three adult men (including the Applicant) came into the room and watched. After the juvenile had finished each of the 3 men had intercourse with the child.
The child’s version of what then happened given to police in a statement on 30 May 1974 includes an allegation that the Applicant and one of the other adult males were in the room when the juvenile withdrew from her and the other adult “had his jeans down”, the juvenile held the child down on the bed by his arm across her until that adult was ready and climbed on top of the child. The Applicant did not provide any response to those allegations.
She also alleged in that statement that when one of the other men was having sexual intercourse with her, after about 5 minutes it was hurting her and she told him “get off” but he continued. The applicant was present watching and waiting with his pants undone. She asked him to get the other man off. “But he didn’t do anything”. The other man continued for about another 5 minutes and “got off”. Then the Applicant had sexual intercourse with her for about 5 minutes. The Applicant did not provide any response to those particular allegations.
The Applicant’s version in his statement to the police is that when he came into the room he waited for “about a minute” while another man “finished and got off “ and then the applicant “went over and kissed her, she laid back down on the bed” and then he had intercourse with her for 15 to 20 minutes when another of the men entered the room. Then the Applicant says he left the room shortly but then returned. “We all went back in again and watched”.
Someone came into the room at one stage during these activities with a camera and purported to photograph some of the sexual activities. It appears from the evidence that the camera did not contain any film. The Police reported that one of the men told the child that if she reported the matter to the police the photographs will be produced. One of the men (not the Applicant) had intercourse with the child a second time. Then the juvenile announced that he was “going for his wings” and sucked the child’s vagina. He then left the room and vomited.
The applicant told the Police when he was arrested that he believed that the child was “fourteen or fifteen”.
The offence was very serious. Section 71 of the crimes Act 1900 provided a penalty of up to 10 years penal servitude. The facts and circumstances of the offence also make it a very serious offence of that type. The reasons of the sentencing Judge are not in evidence. Perhaps some leniency was shown because the Applicant was not violent to the victim. It appears the Applicant was very fortunate in not being given a much longer sentence.

The period of time since the offence occurred and the conduct of the applicant since it occurred.

It is more than 41 years since the disqualifying offence.
The applicant has been convicted of the following offences since the disqualifying offence: -

Sentence Date	Court	Offence	Result
31/05/1974	Raymond Terrace Petty Sessions	No “P” Plates	Fine $100.00
31/05/1974	Raymond Terrace Petty Sessions	Drive manner Dangerous	3 months imprisonment. Disqualified 12 months
30/05/1975	Raymond Terrace Petty Sessions	Unseemly words	Fine $100.00. Imprisonment for 1 month. Suspended on entering a reconnaissance on himself and surety of $450.00 to be of good behaviour for 12 months
18/07/1977	Raymond Terrace Petty Sessions	Drive uninsured motor vehicle and driving unregistered vehicle.	Fined $60.00 on each charge
18/07/1997	Raymond Terrace Petty Sessions	Unlicensed Driver	Fined $30.00
22/09/1980	Maitland Court of Petty Sessions	Drive with prescribed concentration of alcohol(.250)	Fined $550.00 and disqualified from driving for 3 years.
23/06/1993	Scone Local Court	Remaining on enclosed lands	Fined $100.00
23/06/1993	Scone Local Court	Assault	Fined $400.00
6/02/1997	Raymond Terrace Local Court	Drive motor vessel with prescribed concentration of alcohol	Fined $500.00, ordered to pay $50.00 Court costs and disqualified from holding marine license for 12 months.

The charges for remaining on enclosed lands when asked to leave and for assault arose from incident on 10 June 1993 when the applicant at about 1am in the morning went uninvited to the home of his then estranged wife at Aberdeen. He had been drinking alcohol. He banged on the rear door of the house. Eventually she opened the door at which time he pushed past her into the home. He then walked around in the home swearing and swung his hand across her face striking her on the nose. She attempted to push him from the home and he pushed her and he said he wasn’t leaving till he was ready. He threatened her. He pulled the phone socket from the wall before he left.
The victim was not injured, but the assault was both physical and verbal. The Applicant said that he went to the house on that occasion to see his children. It was 1.00 am.
The victim subsequently obtained an Apprehended Violence Order against him for her protection. Police located the applicant at Glenbawn Dam where he was attending a fishing competition. He was taken to Scone Police Station. When given opportunity to make a statement, he declined and said he wanted to talk to a solicitor first.
He pleaded guilty to the charges.
In addition, the evidence established that on 31 July 1974 the applicant was guilty of disorderly conduct while in prison. He was charged with that in a prison procedure. He pleaded guilty and was confined to solitary confinement for 3 days.
The applicant has been married for 3 years with his present wife. His present wife says she has known him for about 39 years. She says she first knew him when he was married to his first wife. They have been co-habiting for about 16 or 17 years and according to the letter from the solicitor for the applicant of 17 February 2015 to the Crown Solicitor they were married on 30 September 2012. At the hearing her evidence was that they have been married for 4 years, as was his, but it appears that it is only 3 years.

It is of considerable concern to the Tribunal that the applicant does not accept the gravamen of the disqualifying offence.
He has in various ways denied or minimised the offence. When he was interviewed by the Police initially, he said that he knew that the victim was under 16 and thought that she was 14 or 15. Dr Hinton, who interviewed the applicant more than 41 years later, reported that the applicant told him that he thought that she was much older than 12 years and “she looked more like 16, the way she was dressed”.
The Applicant’s wife stated in the written statement previously filed in the proceedings “I met [BQF] approximately 39 years ago. I knew of “[BQF’s] charge and imprisonment regarding this disqualifying offence when I met [BQF].” She also gave sworn evidence that “[BQF] told me the details of the offence and he was honest from the beginning about the offence.” But in answer to the further questions, it emerged that he had not told her the details and had not informed her “that it was a young girl under age” She alleged “[BQF] did not know the age until he read the papers”. She said that that behaviour “came as a shock to me”. It put a lot of strain on our relationship, our marriage, on everything.”
In answer to the question from the Presiding Member, she said that she didn’t find out that the age of the victim was only 12 until she saw Police papers. The police documents were filed by the Children’s Guardian on 10 April 2015 and served on the respondent’s solicitor on about then. It appears, then, the applicant’s wife had known him for about 39 years and been married to him for about 3 years. But she only became aware that the child victim of the disqualifying offence was only 12 years of age when Police records were served on applicant in these proceedings.
It appears too from her evidence the applicant falsely told her that he did not know the age of the victim until he read those papers. Clearly he well knew the age of the victim when he was charged in 1974, when he was convicted that year and when he served his sentence for this offence. The Tribunal is comfortably satisfied he has known throughout the period since he was charged in 1974 that the victim was only 12 years of age.
The applicant’s general practitioner in providing a referral to Dr Hinton, the psychiatrist, for the purpose of his report wrote: “[BQF] was charged with consensual carnal knowledge of a minor” It appears from other evidence that this expression “consensual carnal knowledge” was an expression used by the applicant. It is an expression by which he has sought to minimise the offence and which he continued to use more than 40 years after the offence.
In his statement to the Tribunal addressed to the “Guardian Ship Board” which is undated and unsworn, the applicant said “I am at your mercy regarding a bad choice I made 41 years go. To this to this day I did not realise that the young person involved was under age.” The Tribunal does not accept his allegation that he did not know until the time he provided that statement that the victim was 12 years of age. That false allegation and his description of the offence as “a bad choice I made 41 years ago” are both minimisations of the offence and consistent with his failure to disclose to his wife that the victim was only 12 years of age.
Dr Hinton reported in his interview of the applicant and his wife in July and August this year “[BQF] and his wife informed me that he disclosed his offence to the Department of Family and Community Services so that he was ‘truthful’ and that that Department had the facts they needed. He reported being stressed and anxious over the whole matter and having to leave the family home due to orders from the Department of Family and Community Services”.
Notwithstanding his obligations to disclose of all relevant matters under s28(5) of the Act, when the Children’s Guardian wrote to the applicant on 4 February 2015 in relation to these proceedings and asked the respondent whether he had been charged with any criminal offence other than the disqualifying offence, the respondent via his solicitor’s letter of 17 February 2015 falsely answered “no”. He failed to disclose numerous charges and convictions including the charge and conviction for an assault.
At the hearing, it was not until his attention was drawn to his statement describing his disqualifying offence as “a bad choice I made 41 years ago” that he conceded that what he did was wrong. He then appeared to be blaming the victim for his offence when he said, “she didn’t just hang around the bikies, also the football players”
In cross-examination he was asked whether he thought he should have made enquiry as to the child’s age he responded “I think her girlfriend told me she was of age”. The evidence does not disclose any such allegation by him previously. It was a fabrication. Then he volunteered “If we’d asked her, probably she wouldn’t have told us the truth”. It appeared again that he was blaming the victim. When he was asked whether he thought a 12 year old was not able to give consent to sexual intercourse, he again attacked the victim and said “well, you don’t know the lady”. That also shows him also minimising his offence by referring to the child victim as if she were an adult.
When he was interviewed by Dr Hinton, he told the doctor that the child victim “would hang around the club”. He told him that she had been involved in similar behaviour with other men. He also said that the sex was consensual, despite her age. Again he placed blame on the child. And furthermore he told the doctor that he believed a friend of the child “made her tell the Police what had happened” It is unfortunate that it appears that he believed at the time of the interview with Dr Hinton that somehow the fact that someone have “made” the victim report his crime was relevant to his culpability or the seriousness of the offence.
In cross-examination when it was put to the applicant that it was not relevant to the matter that the victim had “hung around” with other men, he avoided the question but he subsequently conceded (when it was put to him) that it did not excuse his behaviour. And he then conceded that as an adult he should have known better. It was put to him in terms of the seriousness of the offence, whether the victim “looked older” was not relevant. His reply was that he doesn’t know. Again his evidence suggested he does not understand the gravamen of his offence.
Similarly when it was also put to him that if she behaved similarly with the other men that was not relevant to his offence, he answered “I don’t understand”.
Eventually he conceded that a child under 16 cannot consent to sexual intercourse. He conceded that he made no enquiries of the age of the child and eventually conceded that thinking that she was consenting was inappropriate. Eventually he conceded that his behaviour when he committed the offence was completely inappropriate and that was not relevant that she may have looked older.
When he was asked about when the seriousness of the disqualifying offence “hit home” to him, he said “I think when I saw the documents”. Presumably that was when he saw the Police records served on him by respondent in April 2015, about 41 years after the offence. He was asked whether he gave any thought about the impact in 1974 on the victim and he answered “No”. Then when he was asked, about the present, he said that he has given thought to the impact on the child victim. When he was asked what impact he believed it would have had on the victim, he answered “devastating”. But later he denied that the offence was for the child victim “horrific” and said “because she didn’t seem to care”.
The applicant’s 20th birthday occurred two days before the disqualifying offence. He told Dr Hinton (and Dr Hinton reported at page 4 of his report of 25 August 2015) that he was 19 at the time of offence. This is despite the general practitioner who referred the Applicant to Dr Hinton saying in the referral he was 20 at the time and Dr Hinton‘s notes of the first interview of the Applicant and his wife on 8 July 2015 stating that the Applicant was 20 at the time. At the hearing, when the Presiding Member asked the applicant his age at the time of the offence, he said he was 19. Then eventually he conceded that he was 20. Understating his age is another aspect of minimising his culpability and the seriousness of the disqualifying offence.
Other evidence is consistent with the Applicant minimising his offence, not accepting responsibility for it, and not understanding the seriousness of the offence. For example, in the statement provided by the son of applicant’s wife, the son refers to information from the applicant about the disqualifying offence by saying “we have spoken about this on a few occasions. How a bad decision has consequences.” Similarly, the applicant ‘s wife testified “[BQF] didn’t know the age [of the child victim] till he read the papers.” But she later conceded that he would have well known the age of the child when he was convicted and when he went to jail for the offence.
Similarly Dr Hinton noted in his clinical notes when he interviewed the applicant in July the victim would “hang around” the club and the sex was “consensual”. Dr Hinton said in cross-examination that his “take” on the applicant saying that the victim was “hanging around the club” that he was blaming the victim. He said that there was “an element of minimisation”. And also that it went to the issue of the applicant’s insight in relation to the offence. However, the Tribunal has concluded that the conduct of the Applicant minimising his offence and its seriousness and failing to accept responsibility for it over 41 years is much more extensive than Dr Hinton concluded. That is mainly because there is much more evidence available to the Tribunal on that issue.
It is a very serious concern of the Tribunal that the Applicant 41 years after his conviction and sentence, has not accepted responsibility for this serious offence, and continues to deny and minimise the offence and blame the child victim. Consistent with this and other evidence the Tribunal found that he expressed little remorse or empathy for the victim, and what he did express in that regard could not be taken as genuine.
When he was cross-examined about the incident when he went to the home of his estranged first wife at 1.00 am in the morning and forced his way into her home, he conceded that alcohol was involved in the incident and then said “I’d been drinking one or two beers. I just wanted to see if the children were all right. I hadn’t seen them for a while.” When he was asked about ripping the telephone out of the wall, he said “not that I recall”. He conceded that he pushed the woman, but he denied that he “clipped her across the face”. He said he doesn’t remember pulling the phone out of the wall.
With regard to the disqualifying offence, he conceded that it too involved alcohol. In his record of interview he disclosed that he and to other adult offenders had been drinking at the hotel before being invited to the house in which the disqualifying offence occurred.
Dr Hinton, in the report to the applicant’s general practitioner on 8 July 2015 said “He is tobacco smoker and drinks 3 to 4 schooners of beer most days. He said his alcohol intake has increased since his recent problems began. Intermittently he uses cannabis and last used last week and tends to use once a week.” In his report for the tribunal that passage was unaltered. The applicant denied in cross-examination that he uses cannabis one or twice per week” He said “It wouldn’t be that regularly”. The Tribunal prefers the admissions he made to Dr Hinton.
In his report to the general practitioner, Dr Hinton said “[BQF] would fulfil diagnostic criteria for an adjustment disorder”. In the final report Dr Hinton said that he “would fulfil diagnostic criteria for an adjustment disorder with anxiety … “.
The disqualifying offence in 1974 was associated with the applicant’s alcohol use. In 1980 he was before the Courts for driving with the prescribed concentration of alcohol. The reading was .250, a very high reading when one considers that the prescribed concentration is .08. He was also convicted at the same time for driving in a manner dangerous. He was disqualified for 3 years from holding a license to drive a motor vehicle.
The forced entry to the home of his estranged wife in the middle of the night in 1993, his assault of her, his failure to leave when asked, his threats and his conduct ripping the telephone from the wall socket all occurred when he was affected by alcohol.
In 1997 alcohol use led to conviction of being in charge of motor vessel with the prescribed concentration of alcohol in his blood. He was disqualified for 12 months from holding a marine license.
All four convictions for serious offences were on occasions when he had been using alcohol stretching from 1974 till 1997, a period of 23 years. Although he is no longer disqualified from driving motor vehicles, he no longer is licensed to drive a motor vehicle. He continues to use alcohol and also cannabis and there is no evidence that he has ever sought professional help to reduce his use of either drug or to abstain.

The age of the person at the time of the offence

The applicant was 20 years of age.

The age of the victim at the time of the offence and any matters related to vulnerability

The victim was 12 years of age. She was vulnerable because she was without adult protection or supervision. She was vulnerable because of her age and limited life experience compared with the applicant. She was vulnerable because she was confronted by 4 males, all older than her, combining in subjecting her to their sexual and other desires.

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

The applicant was 8 years older than the victim. They did not have an established relationship. In the record of interview on 2 June 1974 the applicant was asked whether he knew the victim. He said “I just know sort of thing”. When asked how long he had known her, he said “I met her in the street one day a couple of months ago, I just know her to say G’day to”. Also, in that statement, although it is redacted, it appears the Applicant did not refer to the victim by name, except possibly once in part of his answer to question 12 where he said the redacted answer includes “(redacted) was with the (redacted) sheila, after a while he took her into another room.” Otherwise in his interview he referred to the victim as “the sheila”, “she” and “her”. It appears that the Applicant probably did not know the victim’s first name or surname.
In the statement the victim gave to the Police on 30 May 1974, she referred to the applicant only by a nickname. There was not in that statement or in any other evidence other than the Applicant’s record of interview, details of what previous association she had with applicant. She did not in her statement refer to him by a first name or surname; only by his nickname. The Police records do not address the issue of the extent of their association. The age difference was significant, given the stages of their lives.
Dr Hinton decided that the victim was not a stranger and it appears from his evidence that he relied upon the fact that she knew the applicant’s nickname.
The Tribunal finds that it is not satisfied that there was a relationship between the victim and the applicant, other that they met once in the street and he knew her to say “G’day” to. The tribunal is not satisfied on the available evidence that Dr Hinton was correct to classify the victim as not being a “stranger” for purposes of the Static-99R.

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

S5 of the Act defines “children” for purposes of the Act as “persons under the age of 18 years”. The applicant knew that the victim was a child. The evidence establishes that he also knew that she was 15 years old or younger.

The applicant’s present age.

The applicant is now 61 years of age.

The seriousness of the applicant’s total criminal record and the conduct of the applicant since disqualifying offence occurred

The applicant has a serious criminal record for the period from 1974 to 1997 inclusive. That included convictions for at least 4 serious offences other than the disqualifying conviction.
His criminal record includes the assault on his first wife and the offence of remaining on enclosed lands (her residence) after being asked to leave.
His other conduct since the disqualifying conviction has already been discussed.
The Applicant has had serious behaviour problems associated with his use of alcohol. He continues to use alcohol and cannabis (which is illegal). He has ceased to have a licence to drive a motor vehicle. He has not explained the reason, but it may be that he feared that he would drink and drive with the prescribed concentration of alcohol.
The likelihood of any repetition of the disqualifying offence and the impact on children of any such repetition
The evidence does not disclose that the applicant in the 41 years since the offence, apart from consulting Dr Hinton for a report, has sought advice or therapeutic help from any psychologist or psychiatrist with expertise in assessing or treating any problem he may have that inclines him towards sexual activity with persons under 18 years of age.
The initial referral by the General Practitioner to Dr Hinton sought “an assessment with regards to suitability to care for his stepchildren”.
The report that Dr Hinton prepared dated 8 July 2015 relied on various information provided to him, including some from the applicant and his wife. Dr Hinton concluded in that report as follows:-
Opinion and Recommendations
[BQF] would fulfil diagnostic criteria for an adjustment disorder. He has a previous sexual offence which he was prosecuted for and he is currently in the midst of issues pertaining to the custody of [his wife’s] grandchildren. I asked [BQF] to send me any relevant legal documents and I would need to reassess [BQF] after having seen those.
In his final report dated 25 August 2015. Dr Hinton gave his opinion “that [BQF] represents low risk of re-offending sexually”.
He then concluded: “As a consequence of my opinion about his risk, it is also my opinion that on the basis of this assessment, [BQF] should be permitted to return home permanently and to provide ongoing care to his wife’s grandchildren within that home environment”.
In arriving at that opinion, the doctor applied the Static-99R test which he said is a “widely used 10 item actuary risk assessment instrument for use with adult male sexual offenders who are at least 18 years of age at the time of release to the community. It is designed to predict sexual and violent recidivism in adult male sex offenders. Cross-validation studies of this instrument have indicated that Static-99R typically yields moderate levels of predictive value for sexual recidivism”.
The Static-99R risk assessment tool provides results of either low, low-moderate, moderate-high or high. With his score of 4 using the tool, the applicant’s risk is classed as “moderate-high” risk. The applicant was allocated the score of 1 on each of 4 separate items and scores of 4 or more places the person in moderate-high group and a score of 6 or more applies for the high risk group.
It is possible under the scoring to obtain a score as low as minus 3 and for the range minus 3 to 1 a person is classified as a low risk.
Dr Hinton in his report decided that because of other factors, the applicant should be classified as a low risk. Those factors were: his age, decreasing crime rates, the period of more than 40 years since the disqualifying offence without any further offence, and records of the Department of the Family and Community Services that indicate:-
(1)That the Department has no information to suggest that his wife’s grandchildren have been subjected by him to physical harm, threats of physical harm, sexual abuse, lack of protection from serious or threaten harm or physical injury;
(2)That he has not hindered any investigation;
(3)That he meets the children’s needs;
(4)That he is not using substances to the extent that he is unable to care for them;
(5)That there is no report of domestic violence between him and his wife.

In cross-examination Dr Hinton said that the victim was not classified as “a stranger victim” when he applied the Static 99R because “in her statement she refers to him by his nick name”. It appears that the doctor was not aware of evidence that the victim met the applicant only once and subsequent conversations before the offence were limited to saying “G’day” when passing in the street. There is evidence before the Tribunal that may contradict Dr Hinton’s conclusion that the victim was not a stranger (score of 0 as applied by Dr Hinton) and in fact was a stranger – (score of 1). On the evidence, such as it is, the Tribunal is not satisfied that the victim should not have been considered a stranger for purposes of the application of the Static-99R.
The decision of Dr Hinton to classify the applicant as low risk of further offences involved moving him from the moderate-high classification (score 4 or 5) to lower than the low-moderate classification (score 2 or 3), to classification low (-3 – 1).
It should be borne in mind that the grand children of applicant’s wife had not been placed in the care of applicant and his wife until July 2014, about a year before Dr Hinton’s report and for most of that time the applicant had not been living in the home with the children and had not had care of the children except under supervision.
Dr Hinton had not seen the applicant’s criminal record when he prepared his report.
In his report Dr Hinton did not refer to the issue of minimisation and denial, notwithstanding the applicant had sought to lay some blame on the victim when he told the doctor that “the sex was consensual,” that “the girl looked more like 16, the way she dressed”, that he was 19, that “the girl had tendency to hang around the club”, that she had been involved in similar behaviour with other men, and he believes that “the friend of the girl made her tell the Police what happened.” There were other issues in relation to denial and minimisation such as his denial of knowing her age until he saw the Police records this year. This is also despite the applicant having served a gaol sentence for the disqualifying offence. There was also his failure to inform his partner of the detail of the offence and his continuing to describe it as a “consensual carnal knowledge”. It appears that this minimisation and denial has extended for over 41 years.
When Dr Hinton was cross-examined, it was put to him that the applicant was blaming the victim when he made reference to her “hanging around the men”. And he said “I think there was an element of minimisation”. He conceded that goes to the insight that the applicant has into the offence. And that he said: “People in that situation often are very ashamed and there is a degree of minimisation is common”.
Unfortunately the full extent of the applicant’s minimisation, denial and non-acceptance of responsibility for the disqualifying offence and his failure to demonstrate genuine remorse were not put to Dr Hinton.
He said that insofar he was aware the Applicant has never undertaken any treatment or therapy in relation to his alcohol use. When asked, he said that he did not think that alcohol and cannabis use of the applicant “factored into this calculation of risk”. He did not elaborate on that.
When asked whether denials and minimisation of the offence was relevant to the assessment of the risk he presents to children, the doctor said he would hope that someone would have a clear recognition of the severity of the offence and the remorse. But he said so far as making a prediction for the future, denial and minimisation was “not much value”. He said that when he saw the applicant and his wife, they said that he was willing to participate in any therapy or treatment he thought desirable.
When Dr Hinton prepared his reports he did not have the Applicant’s criminal record, not the record of facts of the offences in 1993 involving his first wife. Although the applicant told Dr Hinton that he had a conviction for assault of his first wife, he minimised his conduct on that occasion. Dr Hinton reported of that incident, “He had an assault charge against him after he pushed past his first wife to see his children following his wife and him separating. He evidently was fined and bonded.” That assault scored 1 point on the Static-99R test. But it appears Dr Hinton was not made aware of the full circumstances of that incident including the time of day, the forced entry into the home, the refusal to leave when asked and verbal abuse.
One of concerns raised by the Children’s Guardian in relation to Dr Hinton’s assessment of risk is that the granting of Working with Children Check Clearance enables the person to work with any children (persons under 18 years) on a paid or unpaid base without supervision and without any conditions imposed. But Dr Hinton’s report is primarily focussed on whether the applicant poses risk to safety of his wife’s grandchildren if he lives in the same house with them and shares their care.
There is some real question of whether if assessing whether the applicant poses a risk to the safety of children (persons under 18 years) Dr Hinton might not have discounted the Static-99R score as much as he did, and he may have considered that the applicant’s failure to recognise the seriousness of the disqualifying offence in the last 41 years and his continuous attempts to blame the victim (and lack of remorse), as well as his past and present difficulties with alcohol should have been taken into account as factors that increase the risk the applicant poses to the safety of children.
The Children’s Guardian also argues that a focus on a risk of reoffending sexually does not address the question whether he poses the risk to the safety of children .That issue, it seems, requires serious consideration of the applicant’s other criminal convictions and the role of alcohol in other aspects of his life.
There is also another matter that appears to have relevance on the risk issue, but was not specifically brought to the attention of Dr Hinton or the Tribunal.
At the time of the offences of assault and remaining on enclosed lands the applicant was 39 years of age and the victim was 33 years of age. The date of their marriage was not in evidence, but according to the letter of 17 February 2015 by the applicant’s solicitor to the Crown Solicitor, their first child was born in September 1978. The Applicant was then 24 and the mother of the child was, it appears,18. It appears the child was conceived before the Applicant’s birthday on 20 May 1978 at a time when he was 23 and the mother was only 17.
But his present wife’s evidence is that she has known the Applicant for more than 39 years and he was married when she first met him. That would have been 1975 or 1976. The Applicant would have been about 21 or 22 years of age and his wife would have been 15 or 16. That was after his release from prison after he served his time for the disqualifying offence. It is concerning that he would then choose to partner with a child about 6 years younger than himself.
Overall the Tribunal does not accept the opinion of Dr Hinton that the risk of the applicant committing another sexual offence is low.

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

The applicant has relied on references from his wife, his wife’s son, (currently on parole and apparently not living with his mother and his children), a Strata Title Manager and a Motel Manager. All these people have associated with applicant and they found him to be of good character. They observed him interacting with children and they said they did not observe anything untoward in those interactions. They described his dealings with children in positive terms.
None of those people who have given him references have provided the details of the disclosure the applicant has made to them (if any) in relation to the disqualifying offence. None of them have professed to have any expertise in assessing whether a person poses a risk to the safety of children. The references are therefore of little or no value in these proceedings.
In addition, there is considerable material provided in the applicant’s case which relates to special needs and care of the three grandchildren of the applicant’s wife. The Working with Children Check Clearance that the applicant seeks cannot be made subject to conditions such as specifying which group of children it applies to, or requiring that there be other adult supervision or any presence by another adult. The requirement is that there be no condition.

Any other matters that the Children’s Guardian considers necessary

The Children’s Guardian in submissions drew attention to the bundle of documents that the Department of the Family and Community Services filed by the Children’s Guardian on 28 April 2015. There is extensive material in the documents regarding the care provided by the wife of the applicant and to some extent by the applicant, in relation to the three children of the wife’s son who came into care of wife and the applicant on 3 July 2014.
The documents include a record of what the applicant told the Department about the disqualifying offence. He did not make disclosure until after he was refused a Working with Children Check Clearance. The disclosure was made to the case worker on 21 November 2014. The record states “[BQF] stated during the home visit that his carnal knowledge charge was in relation to a 14 – 15 year old girl and that was just something stupid he did when he was young. [Redacted] stated that [BQF] and a couple of [his] friends at the time, had all gone to jail for being involved with the girl”. It was also recorded that the applicant moved out of the home 21 November 2014 as requested by the Department. The documents produced by the Department included heavily redacted SDM Safety Assessment Decision Report in respect to the children, and the applicant and his wife.
Apart from the issue of the disqualifying offence and any risk in that regard, the report is generally positive about the children’s condition and the care they receive from the applicant’s wife and, to a much lesser extent, from the applicant.
Conclusions
In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers, that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section:
"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence" [At par 41] and [at par 42].
"One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 `risk' with the words that follow, namely, 'to the safety of children'”.
The disqualifying offence in this matter was a very serious one.
More than 40 years after the offence the applicant is continuing to deny and minimise the offence. He has continued since his arrest to blame the child victim and shows no genuine remorse. He has not accepted responsibility for his offence. There is no evidence that he has ever obtained expert advice or therapeutic assistance in relation to the risk that he may pose to the safety of children, which includes all persons under 18.
The applicant has a background involving abuse of alcohol and convictions for offences committed under the influence of alcohol. The disqualifying offence occurred when he had been drinking. He told Dr Hinton that he at present is using alcohol at a level that concerns him. He also uses cannabis weekly. But there is no evidence that the applicant has ever sought professional assessment or treatment in relation to his use of alcohol or cannabis despite numerous offences related to alcohol use. The Tribunal is concerned that these are relevant matters to the risk of reduced inhibition and bad behaviour. These matters were not taken into account by Dr Hinton in forming his assessment that the applicant poses a low risk of further sexual offences.
The Tribunal is also concerned that the Applicant after serving his sentence partnered with a child of 15 or 16.
The Tribunal is not persuaded by the reasons given by Dr Hinton that the score of the applicant in the Static-99R should be reduced from 4 to 1 and it is not satisfied therefore that on the Static-99R the applicant’s risk of recidivism in relation to the sexual offences is “low”, rather than “low–moderate” or “moderate-high”.
The Tribunal concludes that the Applicant has not overcome the presumption in subsection 28(7) of the Act that he poses a risk to the safety of children and his application must be refused.
Broadcast or Publication - Non-Disclosure
Pursuant to s64 of the Civil and Administrative Tribunal Act 2013 the Tribunal is satisfied that by reason of the nature of the evidence concerning the disqualifying offence and other offences of the Applicant, there should be an order prohibiting broadcast or publication of the names or other identifying information in relation to the Applicant any victim or his wife.
The Orders
The Orders of the Tribunal therefore are:
(1)The Application of the Applicant for enabling orders is refused.
(2)The application of 22 December 2014 is otherwise dismissed.
(3)Broadcast or publication of the name or other identifying information of the Applicant, his wife or any victim of any offence of the Applicant referred to in these reasons is prohibited.

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

[2015] NSWCATAD 225

28 October 2015