BVM v Children's Guardian

[2016] NSWCATAD 65

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BVM v Children’s Guardian [2016] NSWCATAD 65
Hearing dates:	14 December 2015
Date of orders:	11 April 2016
Decision date:	11 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior Member A Limbury, General Member B Field, General Member
Decision:	The application is refused
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:	Crimes Act 1900 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW Commission for Children and Young People Act 1998 NSW Child Protection (Working with Children) Act 2012 NSW Civil and Administrative Tribunal Act 2013 NSW
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 111 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Commission for Children and Young People v V[2002] NSWSC 949 ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 RV v Commission for Children and Young People [2007] NSWADT 299 BHA v Children's Guardian [2014] NSWCATAD 161 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
Category:	Principal judgment
Parties:	BVM (Applicant) NSW Office of the Children’s Guardian (Respondent)
Representation:	Counsel: L Andelman (Applicant)   Solicitors: Legal Aid NSW (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1510199
Publication restriction:	64(1) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

reasons for decision

1. The applicant, known as BVM in this decision, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 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 (the index offence) is his conviction on 8 February 1980 for the offence of murder committed on 28 July 1979. The applicant was sentenced to life imprisonment in respect of that offence. On 6 September 1990 the applicant was resentenced to imprisonment for a period of eleven years and two months and he was released to parole on 30 September 1990.

4. The notice by the Office of the Children's Guardian advising the applicant of his disqualification for a working with children check clearance is dated 18 March 2015.

5. The application seeking an enabling order is dated 1 April 2015 and was filed on 10 April 2015.

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

7. The hearing was conducted in person at Sydney on 14 December 2015.

8. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Relevant Provisions of the Act

9. The Child Protection (Working with Children) Act 2012, NSW 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.

10. The Act was amended by legislation that came into force on 2 November 2015. However BVM’s application was made prior to the commencement of the amended legislation and the Tribunal applied the legislation as it stood at the time of the application.

11. 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.

12. The Act does not define “abuse”. However, some guidance might be found in similar 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 the 'primary considerations' in determining the child's best interests (by reason of subsection 60CC(2A) of the Family Law Act 1975 (Cth)) 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."

13. The definition of "abuse" in section 4(1) of the Family Law Act 1975 (Cth) is as follows:

""abuse" , in relation to a child, means:

(a) an assault, including a sexual assault, of the child; or

(b) 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

(c) 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

(d) serious neglect of the child."

14. The On-line Oxford Dictionary of British and World English defines “child abuse” as the physical maltreatment or sexual molestation of a child”.

15. These sources support a view that the concept of ‘child abuse’ includes physical and sexual assaults as well as actions that are likely to cause psychological or emotional harm.

16. For the purposes of this application, the relevant section is subsection 28 (1) of the Act, which makes provision for applications for an enabling order.

17. Subsection 28(7) provides that where an application for an enabling order is made, "it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of the children." That is, in this application, the onus is on the applicant to prove, on the balance of probabilities, that he does not pose a risk to children.

18. 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.

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

20. It is my view 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.

21. 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.

22. 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] so that its purpose is not to punish BLP but to protect children against the risk of harm of the nature as set out by Young CJ in Commissioner for Children and Young People v V (supra) (see BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 at para. 103-105).

The Evidence

23. The applicant gave evidence and was cross examined under oath and also tendered into evidence without objection:

1. The application seeking administrative review of the disqualification.

2. Affidavits of BVM dated 5 August 2015 and 15 October 2015.

3. Risk Assessment dated 20 July 2014 and supplementary Risk Assessment dated 9 October 2015.

4. Statements dated 22 June 2015 and 10 August 2015 and a Statutory Declaration dated 6 August 2015 from the step daughter of BVM

5. Statutory Declaration dated 15 September 2015 from the daughter of BVM

6. Statutory Declaration dated 7 October 2015 from a friend of BVM

7. Statement dated 9 October 2015 from BVM’s TAFE teacher

24. The respondent tendered into evidence without objection the following bundles of documents:

1. R1 – filed on 13 May 2015

2. R2 – filed on 19 June 2015

3. R3 – filed on 20 August 2015

4. R4 – filed on 15 September 2015

Consideration

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

25. The offence of murder is a very serious offence. The offence took place in a club and the applicant had been consuming alcohol.

26. The specific circumstances of the offence as described by Wood J in his redetermination of the sentence imposed on BVM are somewhat different from the circumstances described by BVM during the current hearing.

1. Wood J records that a person had bumped into the applicant and had trodden on his foot and that the applicant punched that person. Others then intervened and a fight developed. The applicant produced a knife with which he stabbed the victim who had not been part of the original fight.

2. In his affidavit dated 5 August 2015 and under cross-examination the applicant said that he had thought the man he stabbed had been making advances towards his girlfriend and a fight developed between the two of them and also involved other people.

27. Whether the specific circumstances were as described by Wood J or as recounted by the applicant, the Tribunal is satisfied that the offence is a serious one, involving aggression out of proportion to the precipitating events.

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

28. The index offence was some 36 years ago. Since that time the applicant has been involved in a number of violent or aggressive incidents.

29. Whilst in prison the applicant was found to have been involved in a number of violent incidents which are reported in NSW Corrective Services documents submitted by the respondent:

1. 2 April 1981 - The applicant attacked another prisoner with scissors causing cuts to his neck, buttock and arms and was charged with malicious wounding and assault occasioning actual bodily harm and was sentenced to a concurrent period of nine months imprisonment in respect of that incident. In his affidavit dated 5 August 2015 the applicant states that the offence was in response to an attempt by another prisoner to sexually assault him. That version of events was referred to by Wood J in his resentencing judgement in which he comments that he had no reason to doubt the applicant’s account of the incident.

2. 13 January 1982 – The applicant was involved in a fight with another prisoner.

3. 9 January 1983 – the applicant assaulted a prisoner with a metal bar.

4. 15 July 1983 – the applicant assaulted a prisoner whilst they were being transported in the back of a van. This matter was reported to police but not pursued by them.

5. 14 December 1984 – the applicant and another prisoner were involved in a fight.

6. 24 February 1986 – the applicant threatened a prison officer.

30. In his affidavit dated 5 August 2015 BVM refers to his “prison records” as “terrible” and states that he was “in and out of segregation”. He states that the first five years of prison were very difficult for him as a “lifer” who thought that he would be in custody for life.

31. In his affidavit dated 5 August 2015 BVM states that he began to rehabilitate in the last six or so years of his prison sentence and in particular he began to change when he was admitted to the Special Care Unit where he was involved in group therapy and exercises related to understanding and respecting others.

32. During the hearing under cross-examination BVM said words to the effect that whilst in prison he learned a system of emotional regulation related to traffic lights as symbols of stop, go and caution in respect of behaviour and anger management.

33. Since his release from prison BVM has been involved in a number of other incidents:

1. 22 July 1994 – according to police records, the applicant hit a 28 year old male in the face at the Westpoint Shopping Centre. No further information is provided regarding this allegation. Under cross examination the applicant said that he did not recall this incident.

2. 30 March 1996 – “Service Station Incident”

1. The Police Event Record is to the effect that the applicant and the victim arrived at the petrol bowser at the same time and the victim started using the bowser. The applicant parked his car then returned on foot and approached the victim and punched him on the head twice with the second punch causing the victim to fall to the ground at which time his sunglasses fell and broke.

2. In his affidavit dated 5 August 2015 the applicant states that when the other driver overtook him to use the bowser, he “overreacted and bumped into him (the victim) and verbally abused him. He then spilled petrol on me. I pushed the man and he fell onto his side mirror which broke”. He states that he pleaded guilty to this offence.

3. Under cross- examination the applicant said that he does not recall hitting the victim.

4. At Parramatta Local Court on 24 October 1996 BVM entered two recognizances in respect of charges of assault and malicious damage.

5. The Tribunal is of the view that whether or not the assault for which BVM was convicted involved pushing or punching the victim, the offence is one of aggression and violence out of proportion with the precipitating event.

3. 13 March 1999 – Charge of Assault Occasioning Actual Bodily Harm

1. The applicant was charged with the offence for allegedly throwing a glass at a female in a hotel.

2. The Police Event reference for this matter state that a woman was carrying drinks across a dance floor and accidently spilt the drink. A short time later she was hit in the head with a glass by the defendant. She turned and spoke to him but was pulled away by friends. She identified BVM who was detained by staff until police arrived and he was charged with assault.

3. In his affidavit dated 15 October 2015 the applicant states that he was at a hotel with work colleagues. A drink was poured on him. He could not see who had spilt the drink and before he got up and turned around he was already swearing. When he turned around he realised that it was a woman who had spilt the drink. He states that he had consumed a lot of alcohol and “overreacted by carrying on with all the cursing”. He states that he did not come in physical contact with the female and he did not throw a glass at her.

4. Under cross-examination the applicant said that he did not know who had spilt the drink until he was told by police and he denied throwing a glass. He said that he did get angry about the matter but had not lost his temper.

5. At Parramatta Local Court on 31 January 2000 the charge of assault was dismissed.

6. Whilst the charge of assault was dismissed the Tribunal accepts that there was an incident involving members of the public in which BVM reacted angrily to the extent that he was charged, though not convicted, of an offence.

4. 26 April 1999 – the applicant’s ex-wife contacted police alleging he had been threatening to “give it” to her following an argument after a child’s christening. The police record of the incident note that when police discussed the issue with the applicant he was calm and that no children were present during the incident. Under cross examination the applicant said that he did not recall this incident.

5. 20 February 2000 - Charges of assault and Apprehended Violence Order (AVO)

1. Police facts presented to the Fairfield Local Court are to the effect that on 20 February 2000 BVM attended the address of his ex-wife to drop off their two children. An argument developed during which BVM called his ex-wife names such as “cunt” and “slut”. He kicked his ex-wife in the right side of her ribs/stomach causing her to lose her balance. He then punched her on the left side of her face.

2. In his affidavit dated 5 August 2015 the applicant refers to an incident “in around 2000” involving his ex-wife whom he describes as having what he believes to have been a psychotic episode during which she was swearing and coming towards him to slap him. He states that he restrained her and in doing so bruised her arms. He states that he pleaded guilty in relation to the matter because he did not want his ex-wife’s psychiatric condition mentioned in court because of the stigma it would attract.

3. Under cross examination BVM denied kicking and punching his ex-wife and explained his guilty plea as arising from his reluctance to raise the issue of this ex-wife’s mental illness. He was not able to explain why he had not defended his actions as self-defence against his wife’s attack.

4. Under re-examination the applicant said that he was concerned that if he pleaded not guilty to the offence his ex-wife might prevent him accessing his children.

5. At Fairfield Local Court on 25 February 2000 BVM entered a recognizance for two years in respect of the charge of common assault. The recognizance was conditioned that he was not to assault his ex-wife and an Apprehended Violence Order (AVO) was issued for two years naming BVM’s ex-wife as the protected person and BVM as the defendant.

1. Whilst BVM now denies that he was guilty of the offence of assault the Tribunal notes that he pleaded guilty to it at the time. In any case it is not up to the Tribunal to re-determine the matter and it is appropriate to take this offence into account in considering BVM’s criminal history and conduct since the index offence.

6. 17 August 2001 - the applicant’s ex-wife called police alleging that she was concerned following a telephone discussion between them about custody. Police attended her home but she made no allegations relating to threats of violence. She was advised that if the applicant attended her home he would be in breach of the AVO and to contact them if this occurred. She later alleged that the applicant had been intimidating, but the police declined to take any action and were of the view that there had not been a breach of the AVO. Under cross examination BVM said that he had probably made threats to his ex-wife regarding custody of the children but he had not threatened violence.

7. 13 March 2006 – “road rage” incident.

1. The Police Event Report about the incident states that the applicant left his car and walked up to the window of the driver who had cut in front of him, saying, “you’re a fucking arsehole mate” and then spat on the driver through the car window.

2. The Police Event Report notes that independent witnesses said that the applicant threw a punch through the other driver’s window.

3. In his affidavit dated 15 October 2015 the applicant states that both drivers were outside their vehicles, that the conversation was heated and both drivers were swearing. He denies attempting to punch the other driver.

4. On 10 October 2006 at Blacktown Local Court charges of destroy or damage property were withdrawn and a charge of assault was dismissed on the basis that no evidence was offered.

5. Under cross examination the applicant said that the other driver was the first to get out of his car and despite police notations regarding witnesses statements he denied that he had thrown a punch. He admitted that he had lost his temper at the time of incident.

8. 23 September 2006 the applicant was involved in a collision with a motorcycle where a motorcyclist was killed. The applicant emerged from a side road without stopping. He was acquitted of the charge of negligent driving causing death. The Tribunal is of the view that this incident is not one that reflects on BVM’s working with children clearance.

34. Records provided by Family and Community Services contain allegations that the applicant was violent towards his ex partner. These allegations are denied by the applicant.

1. On 4 August 2001 a report was made to Family and Community services about the applicant’s daughter. The report records “history of DV with ex-husband of natural mother”.

2. 26 August 2001 – a report was made to Family and Community Services stating that the natural mother had been in a domestic violence situation and had an AVO against the natural father who had allegedly been very violent in the past and had physically abused both the natural mother and one of the other children.

3. In his affidavit dated 15 October 2015 the applicant refers to the complaints recorded on the Family and Community files on 4 August 2001 and 26 August 2001 and denies that he has ever physically abused his ex wife or his children.

4. The Tribunal notes that it accords these notations little weight as they involve information provided by unidentified persons and were not investigated. However the statements that BVM had been involved in a domestic violence situation with his ex-wife and an AVO had been issued are factual and are referred to in relation to matters that took place on 20 February 2000 for which BVM was sentenced on 25 February 2000.

35. 24 April 2015 - a police report records that the applicant attended the school to collect his child following an argument about custody and his ex-wife contacted police because she was concerned about his mental state. No violence was recorded. In his affidavit dated 15 October 2015 the applicant states that his ex-wife had asked him to collect their son from home rather than the school and that during that conversation they had argued about another matter and he left the house to collect the child. He received a call from the principal saying he could not collect his son form the school because she did not want a custody argument to take place at school.

36. Under cross examination the applicant was asked why he had not utilised the “traffic lights” techniques learned in custody at times when he lost his temper or became angry as outlined in a number of the incidents above. He said words to the effect that the technique might have “wasted away” in the community environment that was different from the custodial environment. He said that he believes he has matured since the incidents outlined above that occurred when he was in his thirties.

37. Under cross examination BVM said that the index offence and some of the other incidents outlined above occurred in the context of alcohol use and that since 2000 he has reduced his use of alcohol so that he now does not have more than two drinks at a time. He said that this was because of the effect of the 2006 traffic accident and also as a result of having been treated for a brain tumour. He said that he last used alcohol when he had two drinks at his father’s funeral in February 2015.

38. In respect of his general conduct since the time of the index offence, BVM makes statements to the following effect in the affidavits sworn on 5 August 2015 and 5 October 2015

Work History

1. Following his release from custody in 1990 he continued to work for the printing company for which he had worked on Work Release and completed an adult apprenticeship. He worked for that company for approximately ten years and when they were bought out he worked for the new company for less than one year.

2. He then worked for another printing company for approximately five years and then another printing company for a short time.

3. From 2004 to 2007 he operated a profitable cleaning franchise.

4. He did not work for some time after the fatal accident in 2006 and the NRMA funded counselling in respect of the accident.

5. In 2009 he had an operation to remove a brain tumour. He required assistance after the operation because of the effects on his balance and did not work for some time after the operation.

6. He worked in a service station for six months between 2010-2011 and from 2011 to 2014 he worked for a Graphics company until he was made redundant. The Tribunal notes that in an undated email in letterhead from that company, BVM is described as an honest and diligent worker who worked for the company from September 2011 until August 2014.

Drug and Alcohol Use and Counselling

1. He “pretty much stopped” drinking alcohol around 2000 when he focussed more on physical fitness and became involved in competitive and team sports.

2. He does not use illegal drugs having tried cannabis only twice when he was 32 years old.

3. He attended approximately five sessions of post traumatic stress counselling after the motor vehicle accident in 2006 and was unable to drive for some six to eight months because of the psychological effects of the accident.

4. He is of the view that the accident has changed his life, bringing to the fore emotions that he had never felt when he was younger and during his prison years. These included “overwhelming guilt and sadness” resulting from taking the life of another.

Family Circumstances

1. He has three children aged 10, 19 and 22 and a stepdaughter who is 24 years old. His stepdaughter has a child whom he treats as his grandchild.

2. The older children work. He and his ex-wife have an informal arrangement regarding the custody of his youngest child including that he has him every second weekend. Recently he has been caring for the child more frequently and he intends seeking custody of the child because he is concerned for the mental health of his ex-wife.

3. He disciplined his children up to the age of 10 with a smack on the bottom after two warnings. He has not used that technique after children turned 10 years old because he believes to so do would not be effective.

4. He was in a relationship with his ex-wife for five years before they were married and they remained together for some five years after their marriage. They divorced on 11 September 2001.

5. The marriage started to fail after approximately two years at which time his ex-wife moved to Newcastle and took the children with her though he sometimes visited the children there.

6. Approximately two years after his ex-wife moved to Newcastle she returned to live with him and the children for some two years until he moved out at the request of his ex-wife.

Study

1. He enrolled in a Certificate IV in Youth Work because he wanted to try to prevent youths making the same mistakes he had made. He switched to a Certificate IV in Mental Health because he was not able to complete the required hours of youth work placement because he was not able to work with children.

Anger Management

1. In his affidavit dated 15 October 2015 the applicant states that:

1. In addition to the “traffic signals” technique he learned in prison, he has learned meditation and also recites prayers and attends church and that these practices help him to calm down.

2. His brain tumour operation in 2009 resulted on a change in his outlook.

3. He believes that he is now able to walk away from confrontation because he has matured and is more aware of his age and physical limitations.

4. Having been a father and grandfather he is now more self-aware. He is not an Australian citizen and realises that a further offence could result in him being deported. He is not afflicted with the “aggression or the stupidity” that affected him when he was younger.

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, whether the person knew, or could reasonably have known, that the victim was a child, the person’s present age

39. The victim of the index offence was 21 years old and at the time of the offence the applicant was 19 years old. The applicant is now 55.

40. There is no record of BVM ever being charged with an offence involving a child.

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

41. The applicant’s criminal record comprises:

1. 1979    Murder: Penal Servitude for Life (on 6 September 1990 resentenced to a minimum term of 11 years and 2 months to commence from 30 July 1979 with an additional term of six years to date from 30 September 1990).

2. 1981 Malicious Wounding: Concurrent 9 months penal servitude

3. 1996 Assault and Malicious Damage: Two year recognizance

4. 2000 Common Assault: Two Year Recognizance and named as the defendant in an AVO.

42. In addition to the matters for which BVM was convicted there have been other police matters in which he has been involved as set out in the section of these Reasons dealing with the seriousness of the index offence and the applicant’s conduct since the index offence.

43. In his affidavit dated 15 October 2015 the applicant makes statements to the effect that his TAFE studies have assisted him to deal with his emotions and with difficult interpersonal situations. In particular he states that he has sought supervision from a TAFE teacher who has provided strategies for dealing with aggressive clients including allowing them to speak, waiting for them to calm down and suggesting a calming activity whilst assuring the person that his/her rights are respected.

44. Under cross examination the applicant expressed the view to the effect that even though he had not implemented the “traffic light” system when dealing with difficult situations he would be able to use the methods outlined by his TAFE teacher because he was using and practising them in his work placement that was part of his course. He expressed a view that whilst his work placement is with people with mental health issues his experience would be of assistance in assisting him to implement the same strategies dealing with aggressive young people.

45. Under re-examination the applicant also said that he believes his experience with his own adult children has assisted him to learn to deal with challenging behaviour by young people. The applicant did not provide additional evidence on this point.

46. In his affidavit dated 15 October 2015 the applicant also states that though he has changed his course of study to the Certificate IV in Mental Health, he intends to study a Diploma in Youth Work because he wants to prevent young people from making the same mistakes that he made.

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

47. When Wood J resentenced the applicant in respect of the index offence he opined that the applicant posed “no risk of recidivism”. However since his release from custody the applicant has been convicted for offences of assault and has been involved in a number of incidents where he has overreacted to situations of possible conflict.

48. The applicant provided two reports from Dr Katie Seidler, a forensic psychologist.

49. In her report dated 20 July 2015 Dr Seidler outlines the following factors as being protective against the risk of further offending by the applicant:

1. He does not have a history of generalised antisocial conduct.

2. He does not have a childhood history of aggression or violence.

3. It has been 15 years since he was charged with an offence.

4. He has participated in intensive psychological intervention and reports that he continues to use the strategies he has learned.

5. He does not have major mental health or substance abuse issues and appears to have positive coping skills.

6. He has participated gainfully in the community.

7. He has positive and prosocial future goals.

8. He reportedly has a strong support network.

9. He has not been the victim of abuse.

10. His previous risk factors for violence are no longer relevant.

11. His scores on the Psychopathy Checklist-Revised indicate that he is not psychopathic.

50. In the report dated 20 July 2015 Dr Seidler notes the following factors as elevating the applicant’s future risk of reoffending:

1. He has a history of serious violent offences.

2. He has a history of violent attitudes, though he now seems able to challenge these.

51. Referring to BVM’s criminal record, Dr Seidler:

1. Notes the murder offence.

2. Refers to the malicious wounding conviction whilst BVM was in custody. In respect of that offence she records BVM as saying that offence was the result of the victim threatening to rape him.

3. Refers to the incident at the service station in 1996 and states that BVM “acknowledged misinterpreting the victim’s actions towards him … and perceiving that this man was threatening and harassing him, precipitating his aggressive response” and that BVM acknowledged the inappropriateness of his actions.

4. Refers to BVM being charged with an “a domestic violence related offence” around 2000 at which time his wife was dysregulated and aggressive towards him in the context of an acute mental health crisis and he put his hand on her forcibly to stop her coming towards him and a result he was charged.

5. In her report dated 9 October 2015 Dr Seidler notes that after submitting her previous report she was provided with additional documentation including police information about BVM’s previous involvement in incidences of violence and also the charge incurred on 20 February 2000. She states that these additional materials were not sufficiently different from the material she considered in formulating her earlier report and did not alter her previous formulation or recommendation.

52. In the report dated 20 July 2015 Dr Seidler summarises BVM’s circumstances to the following effect:

1. He constitutes a low risk of violence. He has matured and now appears to manage himself well and it has been many years since he was charged with an offence.

2. However it is likely that he would still have some difficulties managing threats to his masculinity or safety though such events are unlikely given his current lifestyle.

3. Any possible violence is not likely to be extreme or to result in severe injury and is not specific to young people.

53. In the report dated 20 July 2015 Dr Seidler lists risk management strategies that, with assistance, the applicant was able to generate. She comments that he had reasonable insight and had been assisted by recent training in this regard. She notes that an area of concern is that the applicant “struggled to identify what he would do if he was threatened with violence or aggression by someone or he was afraid for some reason”.

54. In relation to specific questions posed in the referral Dr Seidler expresses the following views:

1. There is no evidence that BVM poses a specific risk to children. He has never abused a child except perhaps by them being exposed to the volatile relationship between him and his ex-wife.

2. His risk of reoffending is generally low and if it occurred would be more likely to be targeted at a fellow adult male whom he perceived to be threatening.

3. His risk is mitigated by his current lifestyle including increasing maturity and the absence of personal stressors or alcohol abuse.

4. His risk level and functioning are stable.

5. His serious criminal history is the most salient feature of his risk but those offences occurred many years ago and were not directed at children or young people.

6. He is capable of working with young people. “However he may find it difficult to work with young males who are aggressive to him and although this is unlikely to result in violence or aggression it is important that (BVM) is well prepared to manage this …”.

7. To assist BVM to manage confrontational or aggressive situations with young males Dr Seidler recommends that he seek specific supervision on how to manage such a situation and that he should develop a specific plan for managing such a situation so that he can feel confident about managing such circumstances and keeping the young people with whom he works safe.

55. In cross examination of Dr Seidler:

1. Counsel for the respondent noted that since his release from custody BVM has been involved in incidents involving violence and aggression and in particular drew attention to the conviction in February 2000 for assault and the incident in 2006 involving the driver who cut in front of him. Counsel noted that it is nine years since BVM was charged with an offence involving violence whilst the period of his involvement in such incidents spanned some 27 years and he asked Dr Seidler whether in her view these facts bode well for the BVM remaining out of trouble due to violence. In her response Dr Seidler said that:

1. On the one part BVM’s history is a cause for concern.

2. On the other part, she believes that people can change and characteristics of an anti-social personality disorder tend to “burn out” with age.

3. Whilst BVM continued to be involved in aggressive episodes into his 40s, Dr Seidler expressed the view that offenders such as BVM often mature at a later age than the general population.

4. Incidents such as his reaction when a drink was spilt on him reflect his response when his masculinity was impugned but as he has aged those types of situations are less likely because he is less likely to be in environments such as nightclubs.

5. She also expressed the view that due to his more regulated lifestyle BVM would now be more able than previously to utilise techniques such as the “traffic light” technique.

2. Dr Seidler agreed that changes in BVM’s relationships could increase his risk in the future.

3. She agreed that the police facts regarding the assault against his ex-wife in February 2000 were significantly different from the version related to her by BVM and involved a different level of violence to that described by BVM. She said that if BVM did become involved in a violent interaction with a partner there was a risk of both physical and psychological harm to any children present at the time.

2. When asked to explain in what ways BVM might have difficulty dealing with challenging behaviours of youths if he were to work with them, Dr Seidler said that she did not believe he would resort to physical violence or aggression but there was a risk that he would become verbally aggressive. She said that she believes that the context of such interactions is significantly different from the contexts in which his previous violence took place and protective factors include that he would be in his chosen profession, in a structured environment and would be interacting with people much younger than himself.

3. Dr Seidler said that in her view the strategies recommended by BVM’s TAFE teacher were good strategies for dealing with young people but were not adequate for dealing with angry young people and that in those situations empathy was counter-productive and the better strategy was to get out of the situation and to allow time to result in a decrease in the emotional intensity of the situation.

4. Dr Seidler said that she believes that if he works with challenging youth BVM would need to have a management plan in place in conjunction with a person who was aware of his vulnerabilities and history and the plan should include strategies for him to remove himself from aggressive situations.

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

56. In a letter dated 23 June 2015 BVM’s Community Services teacher from TAFE attests to the character of BVM in statements to the following effect:

1. He is aware of BVM’s conviction for murder and the disqualification for the Working With Children clearance.

2. He has been teaching BVM since February 2015 and has been impressed with his attitudes to his study. In his view BVM exhibits personal qualities of empathy, compassion and humility.

3. BVM exhibits leadership and mentoring skills in assisting younger students and is a team player who adjusts to challenging situations.

4. In his statement dated 9 October 2015 the TAFE teacher states that in August 2015 BVM approached him about supervision and further training to help him prepare for youth work. He makes statements to the effect that he provided some practical tips and that he and BVM have discussed future training possibilities regarding this matter. He also states that he believes that BVM has “enormous potential” to offer the community.

57. The Tribunal accepts that BVM’s TAFE teacher holds positive views about BVM and that his view has some additional weight because he has engaged with BVM regarding how to manage difficult interpersonal situations. However the Tribunal notes that their acquaintance was limited in time and that the context is restricted to that of BVM’s presentation as a student. Accordingly whilst the Tribunal took into account the views of the TAFE teacher they were given less weight than would have been the case if BVM had been known to his teacher over a longer period or in a range of circumstances.

58. In a statement dated 22 June 2015, BVM’s stepdaughter then aged 25 makes statements to the following effect:

1. She has never known the applicant to be a violent person, he has a “genuinely caring and kind nature” and he raised her and her siblings to “walk away from violence”

2. She has a mental illness and the applicant has been a major source of support to her in dealing the illness.

3. The applicant spends time with her son, his grandson.

59. In a statutory declaration dated 10 August 2015 BVM’s step-daughter states that having seen the notes of Family and Community Services referring to notifications made on 4 August 2001 and 26 August 2001 she is of the opinion that family members were concerned that BVM might be attempting to gain full custody of the children and she does not believe that they were genuinely concerned for the welfare of the children.

60. Under cross examination BVM’s step-daughter she said she had not been aware the incidents described in police facts that occurred over the period of her childhood including the incident at the service station in 1996 for which the applicant was convicted or the incident involving the spilt drink that occurred in March 1999, or the assault conviction and the AVO issued in February 2000.

61. The Tribunal accepts that the statement and statutory declaration of BVM’s stepdaughter set out her views regarding BVM. However the Tribunal notes that BVM’s stepdaughter was not aware of a number of the incidents in which he has been involved or the conviction for the assault of her mother. For this reason the Tribunal placed limited weight on the views of BVM’s stepdaughter as they relate to any risk he might pose due to the possibility of aggression or violence.

62. In a statutory declaration dated 7 October 2015 a friend of BVM, who has known him for 20 years states that BVM has assisted him in training a basketball team and has been “good” and “well mannered” around children and has never acted inappropriately around children. He states that he knows that BVM has been denied a working with children clearance and that if he were to be granted the clearance he would be able to resume coaching assistance, which would be welcomed. The declarant does not indicate that he is aware of BVM’s criminal history. The Tribunal notes that the declarant has known BVM for many years and for that reason his observations about BVM are relevant. However their weight is reduced by the lack of evidence that the declarant was aware of BVM’s criminal history.

63. In a statutory declaration dated 18 October 2015 BVM’s daughter, then aged 19 makes statements to the following effect:

1. She is aware that her father was “convicted of a violent criminal offence”. She does not state that she is aware that the conviction was for murder.

2. She has never seen her father being violent and his discipline of her and her siblings has not involved violence.

3. She believes that BVM started to show more emotion after the fatal car accident in 2006 and he “opened up” more about how he was feeling.

4. She supports BVM’s desire to become a youth worker.

Conclusions on the evidence

64. Taking into account all the factors outlined in s.30 of the Child Protection (Working with Children) Act 2012 this is a finely balanced matter.

65. There are a number of matters that go to supporting the application made by BVM. In summary these are:

1. BVM has been assessed by Dr Seidler as having a low risk of future offending.

2. The index offence was committed some 36 years ago.

3. BVM has not come under adverse police notice for some nine years and has not been convicted of an offence for 15 years prior to the hearing.

4. None of BVM’s offences involved child victims.

5. Since the time of the index offence BVM has developed strategies that are of use in assisting him to deal with situations of conflict.

6. BVM has significantly moderated his use of alcohol.

7. Dr Seidler opines that BVM’s maturation and changed lifestyle are protective against further offending.

8. BVM has provided testimonials from family and friends and the Tribunal is satisfied that over recent years BVM has been a contributing member of society and a supportive father and grandfather and that he has a supportive social network.

9. BVM has undertaken a course of study and his TAFE teacher has attested to his good character and behaviour whilst taking part in that course.

66. There are also a number of matters that raise concerns regarding whether BVM represents a risk to children that is greater than the risk posed by any other adult. In summary these are:

1. The index offence of murder is a most serious offence and BVM has subsequently offended with violence and has also been involved in incidents where he admits that whilst not convicted of criminal offences he overreacted to challenging circumstances and behaved with anger or aggression.

2. The context of the index offence and of the “service station” incident resulting in BVM’s conviction for assault and malicious damage as well as the “road rage” incident in 2006 are situations where BVM acted aggressively and out of proportion to the precipitating factors.

3. Despite BVM’s evidence regarding having learned strategies to deal with conflict situations, the offences and incidents since his release from custody indicate that on those occasions he was not able to successfully implement the strategies learned in custody.

4. Whilst Dr Seidler expresses the view that factors such as BVM’s maturity, a changed lifestyle and learning strategies to manage his behaviour have reduced the risk he poses, the 2000 assault on his ex-wife was serious and at that time he was approximately 40 years old. At the time of the “road rage” incident he was approximately 46 years old and whilst he was not convicted of an offence in relation to that matter he admits his involvement in a situation that in the Tribunal’s view, was easily avoidable had maturity and reason been brought to bear on the situation.

5. Whilst the applicant has not come to the notice of police for nine years, the matters for which he did come under notice span a period of some 27 years, from 1979 to 2006.

6. Dr Seidler expresses the view that BVM could have difficulty dealing with situations involving threats to his masculinity or safety. Whilst she opines that such events are unlikely given BVM’s lifestyle, the Tribunal is of the view that those circumstances are highly probable should BVM work, as he proposes, with troubled youth.

7. Dr Seidler’s expresses concerns that BVM might not have appropriate strategies to deal with aggressive youth. Whilst BVM’s TAFE teacher states that he has discussed possible scenarios with BVM and had discussed the possibility of future training, the Tribunal is not able to place conditions on the grant of an enabling order and is therefore not in a position to require that BVM undergo further training.

8. Dr Seidler also recommends that if BVM takes up work with youths who might behave aggressively he should be supported by a person who is aware of his offending history and his vulnerabilities and he should develop a management strategy for dealing with such situations. As noted in the preceding paragraph, the Tribunal is not able to place conditions on the grant of an enabling order and is therefore not in a position to require that BVM set up these workplace arrangements if he were to work with challenging youth.

67. Taking into account the matters summarised above, the Tribunal is of the view that if BVM were to work with children or young people he would require significant mentoring, monitoring and supervision to ensure that the positive indicators of more recent years, including the lifestyle and personality changes evidenced in the material provided to the Tribunal were maintained and were sufficient to prevent BVM reacting to events disproportionately and with aggression and violence such as he has previously exhibited which would pose a risk to the physical and psychological safety of children including youths.

68. As noted above, the Tribunal is not able to place conditions or requirements on enabling orders and is not able to require that BVM be mentored, monitored or supervised if he were working with children.

69. In these matters, the applicant is to be presumed to pose a risk to the safety of children unless he proves otherwise on the balance of probabilities.

70. In this matter, the Tribunal is satisfied that BVM has made a number of positive changes since the index offence. However taking into account the totality of factors set out in s. 30 of the Child Protection (Working with Children) Act 2012 the Tribunal is of the view on balance, the evidence provided by BVM is insufficient to prove that he does not pose a risk to children that is greater than that posed by any other person.

71. Having reached the conclusion noted in the preceding paragraph, the order of the Tribunal is that the application is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 April 2016