BWE v Children's Guardian

[2016] NSWCATAD 186

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BWE v Children’s Guardian [2016] NSWCATAD 186

Hearing dates:

25 September 2015 and 19 January 2016

Date of orders:

19 August 2016

Decision date:

19 August 2016

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Booby, Senior Member
M Bolt, General Member

Decision:

(1) The applicant is not be treated as a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012 in respect of the offence of committing an act of indecency with a person over the age of 16 years contrary to s. 61N of the Crimes Act 1900 of which he was convicted on 6 April 2011.

(2) Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children clearance

Catchwords:

ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - whether applicant has discharged his onus to establish the contrary – meaning of risk

Legislation Cited:

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
BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126.

Category:

Principal judgment

Parties:

BWE (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
25 September 2016
J Harris (Solicitor Advocate) (Respondent)

 

19 January 2016
V Hartstein (Respondent)

  Solicitors:
Hal Ginges & Co (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

1510227

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 BWE in this decision, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) 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 of the offence of “commit an act of indecency with a person 16 years or over (s.61N Crimes Act 1900).

4. On 18 February 2015 the Applicant applied for a Working with Children Check Clearance (WWCCC). The notice by the Office of the Children's Guardian advising the applicant of his disqualification for a WWCCC is dated 2 April 2015.

5. On 30 April 2015 the Applicant filed an application for administrative review of the decision of the Children’s Guardian. It was accepted by the parties that the application was intended to be an application for an enabling order pursuant to s.28(1) of the Act and was treated by the Tribunal as such.

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 25 September 2015 and 19 January 2016. Written submissions on behalf of the Applicant were filed on 26 February 2016 and on behalf of the Respondent on 7 March 2016. Submissions in Reply were filed on behalf of the Applicant on 29 March 2016.

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 Act 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 in November 2015. However BWE’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. For the purposes of this application, the relevant section is subsection 28 (1) of the Act, which provides that the Tribunal may make an order declaring that the person is not to be treated as a disqualified person.

16. 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.

17. 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.

18. 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 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]).

19. The Tribunal is of the 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.

20. 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.

21. 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].

The Evidence

22. 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. A statement of BWE

3. Four Affidavits in support of BWE’s application

4. A psychologist’s report dated 16 November 2015 (the November report). The psychologist also gave evidence and was cross examined under an affirmation

5. A psychiatrist’s report dated 4 December 2015 (the December report). The psychiatrist also gave evidence and was cross examined under an affirmation.

6. A Community Health Nurse also gave evidence and was cross examined under an affirmation.

23. The Respondent tendered into evidence without objection the following bundles of documents:

1. R1 – filed on 23 July 2015

2. R2 – filed on 11 September 2015

3. R3 – filed on 16 October 2015

4. R4 – filed on 21 October 2015

5. R5 – filed on 12 January 2015

Consideration

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

24. The Police Fact Sheet regarding the index offence provide the following offence details:

1. At about 6:30am on 20 October 2010 BWE entered the front yard of the victim and started to remove his clothes. He lay on the bonnet of the vehicle rubbing himself up and down and making moaning noises.

2. BWE went to the front door of the victim’s house and started to bang on it whilst yelling “let me in, let me in”. BWE opened the screen door and was attempting to open the main door. The victim was frightened and called 000 and hid in the closet.

3. BWE moved away from the door and the victim went to the doorway to lock the screen door. BWE came back to the front of the house and was standing about two metres from the victim. He was completely naked and had an erect penis. The victim yelled at BWE to go away and he said “No I can’t do that I want a fuck”

4. BWE ran from the yard and onto the street. The victim then saw BWE looking over a small gate in her fence.

5. When police arrived BWE was sitting on the front fence at the victim’s residence.

6. While in custody BWE said “I was only looking for some pussy to fuck, I did not do anything wrong”.

7. While in police custody BWE appeared well affected by alcohol and some form of drug and said that he had been given a tablet by a person in a hotel and had consumed the tablet as well as liquor.

8. When police visited the home of the victim some three hours later she was still in a major state of shock and police suggested that she receive medical attention.

25. BWE pleaded guilty to the offence of committing an act of indecency on a person over the age of 16 years. In April 2011 he was sentenced to 12 months imprisonment which was suspended upon him entering into a recognisance to be of good behaviour for period of 12 months with conditions that he accept the supervision of the Probation and Parole Service and comply with all reasonable directions and undertake counselling in relation to mental health, alcohol and drug addiction psychiatric/psychological matters and in respect of educational development.

26. The Tribunal considers this offence to be serious, involving as it does, behaviour of an alarming nature carried out on the private property of an apparently unknown victim who understandably felt frightened and suffered shock as a result.

27. A report from a Staff Specialist in Psychiatry dated 6 December 2016 in relation to the offence indicates that BWE had a “variable delusional disorder or schizophreniform psychosis aggravated by alcohol and THC”.

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

28. The offence occurred approximately five and a quarter years prior to the hearing.

29. Since the offence BWE has been under the supervision of the Probation and Parole Service and has attended counselling.

30. In a Closure/Completion summary dated 21 March 2012, the Probation and Parole officer notes the following regarding BWE:

1. He had intensive treatment and support provided by Forensic Psychology Services of Corrective Services over the period of the recognisance.

2. He had regular counselling with an Alcohol and other Drugs Counsellor. He claimed not to have used alcohol for 18 months and others supported that claim.

3. He was seen on a monthly basis by mental health staff.

4. He was being seen by a psychiatrist at the Community Mental Health Centre but had decreased his medication without consultation with the doctor. That matter would be discussed in an upcoming meeting with the psychiatrist and he would be monitored for signs of decompensation in his behaviour.

5. He attended therapy sessions with a psychologist to address his offending behaviour and complied with appointments.

6. He had commenced TAFE but found it difficult to continue with the course due to his paranoia as well as his Aboriginality.

7. Termination of supervision was recommended due to his satisfactory response.

31. In a letter dated 14 March 2012 addressed to the Department of Fair Trading, a Clinical/Forensic Psychologist states that BWE had been seeing him for therapy for forensic and mental health issues and had made “good progress and the antecedents of his criminal behaviour are now under control. He no longer abuses alcohol and substances, takes his medication regularly and has a positive familial and social support system”.

32. In a letter addressed to the Office of Children’s Guardian and dated 16 October 2015 the Clinical/Forensic Psychologist author of the letter quoted above states that BWE saw him for nine sessions beginning in July 2011 and concluding in April 2014. His response to treatment was positive and he appeared to understand the influence of drug and alcohol issues on his mental state.

33. The Tribunal was provided with notes from the counsellors who worked with BWE. During the hearing Counsel for the Respondent questioned BWE about his statement to a counsellor that on 30 May 2011 he had “lost it” at a martial arts class and had to be restrained. Under cross examination BWE denied losing control. In his explanation of the event he said that a black belt practitioner had kicked him after the buzzer had sounded. He said that he said “Why” and a more senior martial arts practitioner “restrained” him by a neck hold.

34. During the hearing BWE was also questioned by Counsel for the Respondent about telling the counsellor on 14 July 2011 that he was distressed because of an incident involving his godmother, with whom he was residing, during which he had grabbed her arm. After this the counsellor began anger management sessions with him. When asked by Counsel for the Respondent whether he had told the counsellor that he had become angry with his godmother he said “I don’t – I don’t think I did”.

35. Counsel for the Respondent put to the applicant that although he has not been arrested since 2011 he has, nevertheless been involved in some violent incidents. In response, BWE said that he took up martial arts to learn self control and only used controlled violence in the martial arts studio.

36. In an affidavit dated 20 May 2015, a nurse with NSW Community Health (the Nurse) states that he had been the mental health case manager BWE from April 2010 until February 2011. He provides information and opinion to the following effect:

1. Over the time he worked with BWE, the latter struggled with alcohol issues usually manifested by binge drinking. The offence occurred in the context of alcohol use when BWE started to drink at a local hotel and continued to drink at home.

2. BWE is a talented artist with strong support in the local artistic community.

3. BWE’s mental health file indicates that he continued to see his case manager and to comply with medication and abstain from alcohol until his discharge from the Mental Health Service in mid 2012.

4. He has never seen BWE in the company of children and there is nothing in his Community Health file that suggests he would be a risk to children.

37. Under cross examination Counsel for the Respondent put to the Nurse was that concerns were expressed by BWE’s counsellors about BWE’s ability to control his temper or to cope without resorting to violence when under stress. The Nurse said that he agreed that BWE had been upset when under stress but not that he was unable to cope without resorting to violence and said that he has seen BWE cope without resorting to violence. He said that the only incident he could recall was when BWE pushed his godmother when he was angry and that at that time BWE was intoxicated.

38. Under cross examination the Nurse said that he had not mentioned a discussion he had with a Drug and Alcohol Counsellor about a re-referral of BWE and issues about conflict with his mother, because he had not remembered the conversation.

39. Counsel for the Respondent read to the Nurse the content of his notes regarding this matter which included:

(BWE)’s recent difficulties related to closer contact with his mother and anger/anxiety. No acute MH issues at this stage although the risk of conflict/anger between (BWE) and mother.

40. Counsel for the Respondent suggested to the Nurse that at the time he wrote that note there were concerns about BWE’s mental stability and that there were serious questions about his aggressiveness towards his mother and generally. The witness said that he was not able to respond to that suggestion without referring to BWE’s clinical notes, which he did not have at the time of questioning.

40. In a letter dated 6 July 2015 in response to a request of information under s.31 of the Child Protection (Working with Children) Act, an AOD counsellor states that he first worked with BWE in 2009 after BWE’s discharge from the residential rehabilitation placement. He states that BWE attended counselling regularly at different times over the next few years “eventually achieving abstinence from substance use and developing strong insight and improved communication skills”. He also states:

1. BWE has initiated contact on half a dozen occasions since 2012 seeking support with issues ranging from anger management to physical health issues and education and more recently support around into intimacy/relationship skills.

2. BWE’s last presentation was on 19 March 2015 and the previous contact was in September 2014.

3. BWE states that he has remained abstinent from substances and his presentation is “entirely congruent” with that statement

4. BWE has participated in mentoring programs and an Indigenous Men’s group over this time and has developed skills as an artist.

5. BWE “presents as vastly improved physically, mentally and emotionally. His communication style is clearer and his self-esteem greatly improved”.

6. BWE initiates contact, seeking support around healthy relationships and taking time to talk about personal history and new insight into his ongoing process of ‘recovery’.”

42. In the November report the psychologist author provides information and opinion to the following effect:

1. BWE had advised him that he needed a WWCCC to allow him to construct a mural at a local school and that he had committed a disqualifying offence, the details of which were available to the author in the form of the Police Fact Sheet.

2. BWE said that prior to the offence he had consumed “several long necks of beer and skulled some of a bottle of Jack Daniels whisky and was heavily intoxicated” and had consumed a “tablet, some sort of drug” and recalled “blacking out and moving in and out of consciousness”.

3. BWE reported feeling “shocked and ashamed” at the nature of the offence.

4. BWE said that he had commenced smoking cannabis and drinking alcohol at age 17 and by the time he was 18 years old he was drinking alcohol daily and binge drinking on weekends and experimenting with various substances. He said he attended Bennelong Haven Residential Drug and Alcohol Program for 12 months commencing in March 2009. He subsequently relapsed and commenced a period of drug and alcohol counselling.

5. BWE said that he was so shocked by his behaviour in relation to the index offence that he ceased taking any illicit drugs and significantly reduced his alcohol consumption. He said that he had been abstinent from alcohol for the past two years and intended to remain abstinent. He has been training in Hapkido Martial Arts since 2010 and holds a brown belt.

6. At the time of the assessment BWE had a stable relationship, had completed a Certificate III in Painting and Decorating and a two-year apprenticeship and had obtained a contractor’s licence. He has his own business as a licenced painter.

7. BWE’s main interest was as an Indigenous Artist and he has had several exhibitions.

8. BWE did not present with symptoms or signs of any diagnosable mental illness or Paedophilia Disorder. His sexual orientation was that of a mature adult. He did not present with any symptoms that would meet the diagnostic criteria for Exhibitionistic Disorder.

9. Counsel for the Respondent questioned the psychologist regarding his conclusion that BWE did not present with the symptoms of a Paedophilia Disorder or an Exhibitionistic Disorder. She suggested that this was because there was only one event, being the index offence and it was and was not ‘ongoing exhibitionism’ lasting for a period of six months. The psychologist agreed with that suggestion and also said that he had assessed whether BWE had any abnormal sexual fantasies or urges.

10. Counsel for the Respondent asked the psychologist if he had explored with BWE his criminal record to which the psychologist replied that he had a copy of BWE’s criminal record.

11. Counsel for the Respondent asked the psychologist if he had asked BWE about any violent or aggressive behaviour that was not the subject of criminal charges or convictions and the psychologist said that he had not asked about this.

43. The psychiatrist author of the December report recounts the following account of the index offence as told by BWE at the psychiatric assessment interview on 18 November 2015:

1. BWE said that prior to the offence he had consumed a large amount of alcohol “perhaps three long necks of beer and half a bottle of Jack Daniels”, and had consumed “some kind of drug” which had been given to him though he did to know what it was. He was also taking prescribed psychiatric medication.

2. BWE said that he believed his drink might have been spiked.

3. BWE emphasised that this was the first relapse into alcohol use in 18 months and up until that date had been “completely abstinent from alcohol and illicit substances”.

44. In respect of BWE’s behaviour since the offence the psychiatrist states that BWE informed him of the following:

1. He had returned to regular attendance at AA and had no significant binge drinking episodes and had been abstinent from alcohol since 2013.

2. He ceased psychoactive medication in 2012 and had no mental health interventions since then.

3. He trains daily for Hapkido as well as working daily and engaging in personal artwork.

45. Counsel for the Respondent questioned BWE about contact he made with Katoomba Community Health in 2014 after his mother had contacted the Community Health Service because in her opinion BWE was not coping well with the fact that his godmother had been hospitalised with a heart problem. BWE said that in that occasion he had a disagreement with his mother and that whilst he was stressed because his godmother was ill, he was not mentally ill.

46. In his affidavit, BWE states that he “very rarely drinks alcohol”. Counsel for the Respondent questioned BWE regarding the precise meaning of that claim and he agreed with her proposal that over the last couple of years there have been “one or two occasions” when he has drunk alcohol.

47. Counsel for the Respondent also questioned BWE about a statement attributed to him by the psychiatrist author of the December report to the effect that he had been abstinent from alcohol since 2013. He agreed that he had some alcohol, perhaps “one or two beers” since 2013.

48. In his affidavit BWE also states that he has “abstained from other drugs completely” and has not used cannabis since 2008. In the process of cross examination Counsel for the Respondent referred to a note made by BWE’s alcohol and drug counsellor dated 11 June 2009 to the effect that BWE had smoked some “joints” with friends. Under cross examination BWE agreed that there have been occasions on which he has used marihuana since 2008.

49. At the time of the offences BWE was without a partner. In his affidavit he states that he has been with his current partner “throughout 2015” and that his partner is aware of “his past” and continues to support him.

50. In an affidavit dated 15 August 2015 BWE’s partner states that she has been in a relationship with BWE since January 2015 and knows about his criminal convictions and issues with drugs and alcohol and the current proceedings. She states that she has never experienced BWE to be violent or aggressive towards her or anyone else and has never known him to use drugs and has never seen him affected by alcohol. She states that she and BWE wish to live together and start a family “in the next few years”.

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

51. The victim was aged approximately 48 at the time of the index offence and the applicant was aged 23.

52. There was no relationship between the applicant and the victim.

53. The victim was approximately 25 years older than the applicant.

54. The victim was not a child.

55. The applicant is currently 28 years old.

56. The victim was vulnerable in that she was in her own home in the early in the morning and would not have been expecting the type of confronting and frightening behaviour in which the applicant engaged.

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

57. BWE’s criminal record commenced in 2005 and the last recorded conviction was in 2010. The record includes the following matters:

1. In 2005 BWE entered a recognisance in respect of a charge of unauthorised dealing with shop goods. There was no conviction recorded in respect of the two matters.

2. In April 2006 BWE was fined $600 for the offence of assault occasioning actual bodily harm. This offence involved BWE, when intoxicated, punching the victim whom he had asked to give him a cigarette.

3. In May 2006 BWE was fined $300 for entering into enclosed lands without consent and he was fined $200 for destroying or damaging property.

4. In March 2007 for two matters of common assault BWE was ordered to perform 24 hours of community service. These matters involved BWE threatening and spitting at two females.

5. In August 2007 BWE was fined $200 for criminal assault. This matter involved BWE, when intoxicated, spitting on a male who had assisted a security staff member remove him from a hotel

6. In March 2008 charges of assaulting a police officer and hindering a police officer were dismissed under s. 32 of the Mental Health Act 2007.

7. In July 2008 BWE was sentenced to 2 months imprisonment for the offence of assault occasioning actual bodily harm. On appeal in lieu of the sentence he entered a recognisance to be of good behaviour for seven months, to accept the supervision of the Probation and Parole Service and to attend the Bennelong Haven Alcohol and Drug Rehabilitation service. This matter involved BWE when intoxicated, punching his former girlfriend, threatening to kill her, placing his hands around her neck and squeezing her neck and cutting her with a Stanley knife.

58. BWE has not committed any offences since the index offence.

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

59. The documents provided to the Tribunal indicate that in 2009 BWE presented to the Emergency Department of his local hospital on two occasions, the first being when he had an overdose of his antipsychotic medication and the second when he was feeling anxious.

60. Counselling notes provided to the Tribunal indicate that in 2010 his counsellor was concerned that BWE could have been experiencing auditory hallucinations.

61. In a letter dated 6 December 2010 addressed to Mr Ginges, a Staff Specialist in Psychiatry from the Sydney West Area Health Service of NSW Health states that BWE was diagnosed with a variable delusional disorder or schizophreniform psychosis aggravated by alcohol and cannabis use. He states that the index offence was not directly related to BWE’s mental illness, but that his excessive use of alcohol could be driven by suspiciousness of others and when combined with a baseline of reduced awareness of the consequences of his actions, the alcohol use could lead to such acts.

Psychological Pre Sentence Report

62. A Psychological Pre Sentence Assessment dated 1 April 2011 prepared by Forensic Psychologists from the NSW Corrective Services Sex Offender program provides information and opinion to the following effect:

1. BWE’s score on the Static 99R actuarial risk assessment instrument was 7 which places him in the “high” risk category of sexual offenders who, in normative sampled reoffended at a rate of between 18.8% and 37.9% over five years and between 33.3% and 48.6% over ten years.

2. The Static 99R takes into account historical facts and does not make allowances for any changes in the offender’s circumstances. When assessing BWE’s risk of sexual recidivism taking into account dynamic factors, the following applies:

1. BWE had a mental illness that is likely to have affected his sexual attitudes and beliefs.

2. The mental illness had caused some difficulty for BWE in forming significant and meaningful social relationships. In turn this had resulted in feelings of loneliness and depression.

3. BWE had attempted to deal with feelings of social isolation, loneliness and depression by using drugs and alcohol.

4. BWE had addressed some of the risk factors and said that he had ceased using marihuana and alcohol and was continuing martial arts training. He was attending Alcohol Anonymous and developing his skills as an artist.

5. Individual therapy was recommended as a way of assisting BWE to explore and address sexually related issues.

3. The authors conclude:

“ an assessment of his social and psychological dynamic risk factors suggest that (BWE’s) risk of reoffending sexually is primarily related to the active presence of symptoms of his mental illness that affect his sexual attitudes and beliefs, and his consumption of marijuana and alcohol. The issues of difficulty forming social relationships, social isolation, loneliness and depression are also relevant to his risk, but to a lesser extent”.

The November Report

63. In the November report the psychologist author states:

1. It was probable that the applicant had a brief psychotic disorder induced by a combination of alcohol, prescription medicine and an illicit substance and that there appeared to be no other history of schizophrenia or other psychotic disorders.

2. A K10 assessment conducted by BWE’s GP showed little psychological distress, whilst a Beck Depression Inventory revealed insufficient criteria on which to diagnose depression and a Depression, Anxiety and Stress Scale revealed scores in the normal range.

3. The applicant did not present with symptoms or signs of a diagnosable mental illness or disorder as defined in the DSM-5 and had no history of diagnostic criteria that would indicate a Paedophilic or Exhibitionistic Disorder.

64. When asked during cross examination whether the applicant had told him about his previous diagnosis of schizophreniform psychosis, the psychologist said he had not been informed about that diagnosis. The psychologist also said that he had not been aware that the applicant had received counselling for paranoia, involving some auditory hallucinations and anxiety, or that he had attended emergency departments on more than one occasion suffering from anxiety attacks.

65. The psychologist author of the November report concludes to the following effect regarding BWE’s risk of reoffending:

1. His prior history of offending appears to have been substantially caused by a combination of drugs and alcohol together with mental illness, predominantly depression.

2. He has attended drug and alcohol counselling and psychological treatment and has addressed both the causative factors. He has been abstinent from drugs and alcohol and prescription medication for a two year period.

3. He has not committed any offences for the past five years. He impresses as a young indigenous person who as a result of his own efforts has turned his life around. He presents as a valuable contributing member of society who has obtained trade qualifications and established his own business. He resides within a broader context of stable accommodation and mutually supportive, mature interpersonal relationships.

4. BWE’s risk of reoffending with particular regard to the index offence is negligible to non-existent. His risk to the well-being of children and young people is similarly negligible to non-existent.

66. During the hearing Counsel for the Respondent questioned the psychologist regarding his report in which he initially cites the applicant as saying that he was so shocked by the offence that ceased taking illicit drugs and significantly reduced his alcohol consumption and also cites him as saying that he has been abstinent from alcohol for the past 2 years. The psychologist explained that he believed the comment about reduction in use of alcohol related to the time from 2010 until two years ago, whilst the comment about abstinence referred to the more recent past two years.

67. Counsel for the Respondent asked the psychologist if his views would change if in fact the applicant admitted to occasional use of alcohol. He said that knowledge of some occasional use of alcohol by the applicant would not change his assessment and that if the applicant had said he was abstinent when in fact he was using alcohol occasionally he would need to discuss the disparity with the applicant before he could decide if the disparity was a matter for concern.

68. Under cross examination the psychologist said that he had not asked the applicant if he had engaged in violent or aggressive behaviour apart from what was noted in his criminal history. He also agreed that he had not conducted a statistical assessment, such as the Static 99 to assess the risk of a future sexual offence by BWE and said that he prefers to base his assessment on a clinical interview. When questioned about his awareness of the statistical risk that exists for reoffending within the first ten years after a sexual offence the psychologist opined that there is a risk but he has been asked to assess the applicant’s risk to children and he had never offended against children.

The December Report

69. The psychiatrist author of the December report comments to the following effect:

1. BWE’s developmental history is suggestive of chronic alcohol dependence/ abuse and behavioural instability throughout his late teens and early twenties.

2. The 2010 offence was an “aberrant act” in the context of intoxication following his first consumption of alcohol in 18 months.

3. Since the offence, BWE has “displayed an exemplary record of abstinence, consistent employment and over the last two years, self employment”.

4. The 2010 offence did not involve inappropriate actions regarding children or minors.

5. At the time of the assessment BWE was asymptomatic with regards to mental illness and had been completely abstinent from alcohol for two years.

6. In his opinion, BWE “presents no foreseeable risk with regards to working with children”.

70. During the hearing under cross examination, the psychiatrist said words to the effect that:

1. He did not have access to BWE’s criminal history and did not explore with BWE any history of violent acts. He did not know about the incident at the Hapkido training or BWE’s aggression towards his godmother or that BWE’s mother had approached the Community Health Centre and as a result BWE re-engaged with counselling.

2. He had assumed that an anti-psychotic medication was prescribed for BWE for mood stabilisation purposes because on specific questioning there was no history of psychotic symptomatology.

3. When asked if his approach to the applicant would have been different had he known about BWE’s previous counselling record or the reports of other psychiatrists, including the letter dated 6 December 2010 referring to diagnosis of a schizophreniform psychosis, the psychiatrist author said that his approach might not have been different because:

1. BWE has been asymptomatic of any psychotic symptoms for the last couple of years;

2. He has been abstinent from drugs and alcohol since 2013.

3. He had been using illicit substances frequently prior to the offence. If there was a history of psychotic symptomatology it could be concluded with some degree of probability that it would have been a substance related psychotic condition the symptoms of which had ceased after he abstained from substances.

4. BWE had told him that he had been abstinent from alcohol and illicit substances for 18 months prior to the offence and he accepted that. He also did not question BWE’s claim to have been abstinent from alcohol since 2013.

4. He had not conducted a statistical assessment of BWE’s risk of recidivism because that is not the role of a psychiatrist.

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

71. In an affidavit affirmed on 15 August 2015, BWE’s godmother, a Member of the Order of Australia, states that she has been a teacher for 65 years and continues to teach on a voluntary basis at an after school centre. She makes statements to the following effect:

1. She boarded with the family of BWE’s grandmother whom she taught in primary school and has had a relationship with the family for approximately 60 years.

2. She has known BWE’s mother since she was born and BWE’s mother and BWE lived with her throughout BWE’s infancy and later in his teens.

3. BWE moved to Sydney and started to come under police notice. She contacted his Indigenous family and together they arranged for him to attend rehabilitation. After that period of rehabilitation BWE returned to live with her and completed his painting and decorating course at TAFE.

4. When she spoke to BWE after the index offence he told her that he thought his drink had been spiked.

5. BWE has lived with her since the index offence. She has had no problems with him whatsoever. He works hard in his painting and decorating business and on his creative art. She has never seen him cause any harm or any young people and does not believe that he poses a threat to any young person.

72. In an affidavit affirmed on 25 August 2015 a friend of BWE who states his occupation as a Health Education Officer with the Western Area Health Service, states that whilst he has been “challenged” by some of BWE’s past “incidents” he has seen that BWE’s growth “artistically, socially and professionally” has enabled him to “gain wide respect and a good public image” and he “provides now that strong mentoring role image and practice in his involvement with other young people in the community.” He has invited BWE to his home and has found his “kindness and quiet nature a valued asset when children of family and friends have been present”.

73. In relation to this affidavit, Counsel for the Respondent submitted that there is no indication that the witness was aware of the nature of the index offence.

Any other matters that the Children’s Guardian considers necessary.

74. In her submissions Counsel for the Respondent notes that in 2010, prior to the offence, the applicant harmed his godmother by pushing her over.

75. In relation to the November report, in her written submissions Counsel for the Respondent submits that:

1. The conclusion of the psychologist author of the report that the offence probably occurred when the applicant experienced a brief psychotic disorder cannot be relied on because the psychologist was not aware of the applicant’s long history of mental health problems and in particular the schizophreniform psychosis which “by definition is a condition lasting six months or more”.

2. The psychologist’s assessment of the applicant’s risk of reoffending cannot be relied upon because he did not deal properly with the issue of the statistical risk of reoffending of sexual offenders and did not conduct a statistical risk assessment, instead relying on a clinical interview in which he was not told the truth.

76. In her written submissions, Counsel for the Respondent submits that the December report cannot be relied on because:

1. The psychiatrist was not fully informed about the applicant’s psychiatric history and made a false assumption about the reason for prescribing an anti-psychotic medication. He did not know that the applicant had re-engaged with his drug and alcohol counsellor following an incident in 2014.

2. In his report the psychiatrist minimises the seriousness of the offence and the trauma to the victim by describing her as a “witness” rather than the victim.

3. He was not fully informed about BWE’s use of drugs and alcohol and periods of abstinence.

4. He seemed to think that his report was to be used only in respect of the applicant painting a mural at a school.

5. He is not qualified to comment on the statistical likelihood of reoffending.

77. In her written submissions Counsel for the Respondent submits that the affidavit from the Community Mental Health Nurse affirmed on 20 August 2015 is not helpful to the applicant because it omits reference to a relevant event in 2014, being BWE’s re-referral for counselling.

78. In her written submissions Counsel for the Respondent submits that BWE was not a reliable witness and is in breach of his obligations under s.28(5) of the Child Protection (Working with Children) Act. In particular she refers to his evidence in respect of the following matters:

1. He denied violent behaviour since his conviction but he has told his counsellor that he has been violent.

2. It was put to him that on 30 May 2011 he had “lost it” in a martial arts class. He denied this and said he didn’t believe he lost control. However this is contradicted by the evidence of what he told his counsellor as contained in the counsellor’s notes filed by the Respondent.

3. When asked if he told the counsellor that he became angry and grabbed the arm of his godmother, he said that he did not think so. However the notes of the counsellor indicate that he did tell the counsellor this

4. When asked about his affidavit in which she says I very rarely drink alcohol he answered I don't drink at all. When put to him that “I rarely drink alcohol” does not mean the same as “I never drink alcohol” he agreed that he has sometimes drunk alcohol.

5. BWE said that he had not used cannabis since 2008 but when it was put to him that his counsellor’s notes from 2009 refer to him coming to Sydney on weekends and smoking cannabis he said that “quite possibly, yes”. He agreed that what he said in his affidavit about not using cannabis since 2008 was not true.

6. When it was put to BWE that the counsellor’s notes referred to his drinking 1 to 15 standard drinks and smoking cannabis in 2009, BWE said that he drinking part might be right, but not the cannabis.

7. He agreed that his statement to the psychiatrist author of the December report that he had been abstinent from alcohol since 2013 was not true.

79. Counsel for the Respondent also submits that BWE avoided answering many questions and when questions were difficult to answer he said that he did not remember.

80. Counsel for the Respondent also submits that BWE has obtained favourable reports from the expert witnesses by at least partly failing to disclose to then his psychiatric history and other relevant material. This is a breach of his obligations under s.28(5) of the Child Protection (Working with Children) Act.

Conclusions on the evidence

The seriousness of the index offence

81. The Tribunal is of the view that the index offence is a serious one.

The Period of time since the index offence and the conduct of BWE since that time

82. Since the time of the index offence BWE has attended counselling. When under the supervision the Probation and Parolee Service he had intensive treatment and support from the Forensic Psychology Service of Corrective Services and also with Drug and Alcohol counsellors and was seen on a monthly basis by mental health staff.

83. BWE has initiated contact with community counsellors subsequently to seek assistance with issues including anger management, physical health and intimacy/relationship skills.

84. The Tribunal accepts that BWE has not been totally abstinent from alcohol or drugs since the offence. However the Tribunal is satisfied on the evidence that BWE now controls his intake of those substances. In reaching this conclusion the Tribunal takes into account:

1. Under cross examination BWE agreed that his claims of abstinence were not correct. He said that he has had alcohol on “one or two occasions and that he has had cannabis on some occasions since 2008. There was no evidence before the Tribunal that conflicted with BWE’s evidence that nowadays he only occasionally uses these substances.

2. The Tribunal was provided with extensive documentation regarding BWE’s contact with counsellors. Whilst the documents contain a reference to using alcohol and drugs in 2009, which was prior to the index offence, they do not indicate that ongoing use was an issue at over the time of the counselling.

85. Counsel for the Respondent has submitted that BWE has been involved in acts of violence or aggression since the commission of the offence. In particular Counsel for the Respondent referred to incidents involving an incident at BWE’s Hapkido class, an incident involving his godmother and an incident involving conflict with his mother. The Tribunal is of the view that these incidents do not materially impact on the assessment of risk posed by BWE. In reaching this conclusion the Tribunal took into account the following:

1. The matters related to the Hapkido incident and the issue of BWE pushing his godmother were raised by BWE and were dealt with in a session of counselling.

2. No matters have been referred to police as criminal matters and nor have there have been any applications for apprehended violence orders. The Tribunal is not provided with any evidence that any person other than BWE has reported the matters as requiring any attention.

3. The information provided in the counselling notes does not support a conclusion that any person was threatened or injured by the incident at Hapkido.

4. In relation to the matter involving BWE’s godmother in 2011 the Tribunal notes that she has provided an affidavit dated 15 August 2015 in which she states that he has lived with her since the offence and she has had no problems with him.

5. BWE’s mother contacted the Community Mental Health Team in 2014 expressing concerns about BWE. In the absence of more detailed evidence about the referral and the competence of BWE’s mother to assess his need for counselling, the Tribunal is not satisfied that the referral of itself is evidence that BWE was in need of intervention at the time of the referral. Based on the notes made by the Nurse regarding that referral and his evidence at the hearing, the Tribunal is not satisfied that this referral prompted concerns about aggression on the part of BWE as opposed to more generalised concern about his relationship with his mother.

6. In her affidavit dated 15 August 2015, the girlfriend of BWE states that she has been in relationship with BWE since January 2015 and has never known him to be violent or aggressive to her or to others.

7. In an affidavit dated 25 August 2015, a Health Education Officer speaks of BWE whose “kindness and quiet nature” represent a “valued asset”.

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

86. The index offence did not involve a child and none of the offences or matters raised in the hearing have involved children.

87. The Tribunal accepts that when he committed the index offence BWE did not know who was in the house and it was possible that a child could have witnessed and been traumatised by his behaviour.

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

88. BWE has a criminal record spaning five years. Some of the offences involve aggression. The 2006 and August 2007 matters were dealt with by way of fines and the March 2007 matter resulted in an order that BWE perform 24 hours of community service. The Tribunal is satisfied that the penalties provided for these offences indicate that they are not serious matters.

89. The matter for which BWE was initially sentence in July 2008 was a serious matter involving serious assault by BWE upon his girlfriend. However following that offence and as a condition of his recognisance imposed on appeal, BWE attended a residential rehabilitation program after which, on his evidence, he was more able to control his use of drugs and alcohol, though, as noted above, he admitted to not being totally abstinent and relapsed, including at the time he committed he index offence.

90. There is no evidence that BWE has come under police notice since the index offence in 2010.

Information given by the Applicant, the period of time since the index offence and other matters that the Children’s Guardian considers necessary and the Likelihood of any repetition by the person of the offences or conduct and the impact on children of such repetition

Substance Use

91. The Tribunal accepts that when he committed the index offence BWE was affected by alcohol and drugs. The Tribunal is satisfied that BWE is controlling his use of these substances and that they are not currently contributing to any increased risk of repeated reoffending. The Tribunal has reached this conclusion based on the following:

1. Prior to the index offence BWE was involved in a number of offences involving aggressive behaviour. The Police Event references for all but one of these matters refer to BWE being intoxicated. Since the index offence there have been no police events recorded in respect of BWE.

2. BWE was supervised by Probation and Parole for approximately 12 months until March 2012. The Closure Summary refers to his positive response to supervision.

3. A letter dated 6 July 2015 from a drug and alcohol counsellor indicates that when last seen on 19 March 2015 BWE’s presentation was consistent with his claim that he was abstaining from substances.

4. In her affidavit dated 15 August 2015, the girlfriend of BWE states that she has been in relationship with BWE since January 2015 and has never known him to use drugs and has never seen him affected by alcohol.

5. In an affidavit dated 25 August a Health Education Officer speaks of BWE as a person with “wide respect and a good public image”

6. Counsel for the Respondent elicited some contradictory comments from BWE regarding whether he has totally abstained from the use of alcohol and drugs since the time of the offence, or has reduced his intake to rarely using these substances and he admitted to occasional use of alcohol and marihuana.

7. There is no evidence before the Tribunal that BWE’s admitted occasional use marihuana or alcohol has caused behaviour that would risk harm to a child.

8. There is evidence by way of the affidavit from BWE’s godmother, his girlfriend and a local Health Education Officer that his behaviour has been positive.

BWE’s Psychiatric Diagnosis

92. The letter dated 6 December 2010 from a Staff Specialist in Psychiatry from the Sydney West Area Health Service of NSW Health states that BWE was diagnosed with a variable delusional disorder or schizophreniform psychosis aggravated by alcohol and cannabis use. In her submissions, Counsel for the Respondent notes that BWE stopped taking his prescribed medication in 2012.

93. The Tribunal is of the view that whilst BWE’s psychiatric condition contributed to his commission of the index offence. However the evidence does not support a conclusion that the diagnosis remains current. In reaching this conclusion the Tribunal took into account:

1. Whilst in her written submissions Counsel for the Respondent submitted that a schizophreniform psychosis is one that by definition lasts for more than six months, it is the understanding of the Tribunal that a diagnosis of schizophreniform psychosis refers to a short term condition lasting up to six months. This is in accordance with the evidence provided during the hearing by the psychologist author of the November report as recorded in the transcript of the hearing.

2. BWE was discharged from treatment by the Mental Health Service on 8 June 2012.

3. BWE has enlisted the support of an Alcohol and Other Drugs counsellor from the Health Centre since his discharge but the counsellor has not expressed concerns about BWE’s mental health. To the contrary, in a letter dated 6 July 2015 the drug and alcohol counsellor indicates that when last seen on 19 March 2015 BWE presented as “vastly improved physically, mentally and emotionally”.

4. As noted above, BWE had not come under police notice for any unusual behaviour or for any other reason since the index offence. He has not been admitted for psychiatric treatment since being discharged from the Mental Health Service.

5. On the available evidence BWE has not exhibited psychotic symptoms despite not taking medication since 2012.

6. The psychologist author of the November report stated that results on the Beck Depression Inventory and the Depression, Anxiety and Stress Scale indicated that BWE was within the normal range. The Tribunal understands that these are self reported instruments and there was no evidence provided to indicate how the psychologist’s understanding of BWE’s past would have affected BWE’s scoring of the items in these assessments.

The Assessment reports

94. The assessment provided by the Forensic Psychology Service of Corrective Services in April 2011 noted that whilst BWE was assessed as being a high risk of reoffending his risk was primarily related to the active presence of his symptoms of mental illness and the use of alcohol and drugs as well as difficulties in forming social relationships, social isolation and loneliness. In respect of that assessment the Tribunal notes that:

1. Whilst under the supervision of the Probation and Parole Service, BWE attended counselling with the Forensic Psychology Service.

2. As noted above, the Tribunal is satisfied that BWE’s mental health diagnosis is no longer current and he has been successfully controlling his use of drugs and alcohol.

3. The evidence of BWE and his girlfriend is to the effect that they are in a committed and long term relationship.

4. The affidavit provided by the Health Education Worker includes comments to the effect that BWE is a person who attracts “wide respect and a good public image”.

5. The letter dated 14 March 2012 from the forensic/clinical psychologist states that “the antecedents of (BWE’s) criminal behaviour are now under control.

95. Taking these matters into account the Tribunal is of the view that the factors identified by the Forensic Psychology Service in 2011 are no longer influencing BWE’s behaviour.

96. The psychologist author of the November report opines that BWE had no history of diagnostic criteria that indicated a Paedophilic Disorder or an Exhibitionistic Disorder. The psychologist was questioned about this conclusion under cross examination and agreed with Counsel for the Respondent that his view was based on there being only one event as opposed to ongoing exhibitionist behaviour lasting over a six month period. Counsel for the Respondent asked the psychologist whether he knew about what she described as BWE’s non-criminal “violent” behaviour. The psychologist said that he did not know about that behaviour. There was no evidence, further discussion or submissions as to why this omission would call into question the conclusion that BWE does not have a history of diagnostic criteria that indicated a Paedophilic Disorder or an Exhibitionistic Disorder and the Tribunal is not able conclude that it does so.

97. In reaching his conclusion that BWE does not pose a risk to children, the psychologist author of the November report takes into account his belief that that BWE had been “abstinent from all drugs and alcohol and prescription medicine for a 2 year period”. The evidence provided to the Tribunal is that BWE has not been abstinent from substances. However there is no evidence before the Tribunal of problematic use of alcohol or drugs by BWE.

98. Counsel for the Respondent submits that less weight should be placed on the opinion of the psychologist author because he focussed on the absence of child victims in BWE’s criminal history and did not take proper account of the fact that it was fortuitous that children were not present at the time of the offence. The Tribunal is of the view that the psychologist was in error in focussing on crimes directed to children rather than those that could harm a child.

95. Counsel for the Respondent also submitted that the weight to be placed on the assessment of this psychologist is reduced because he did not conduct an actuarial risk assessment. The Tribunal accepts that the value of his report is reduced as a result of that omission. However in respect of the matter before the Tribunal, there is such a report provided by the Forensic Psychology Service of Corrective Services. As noted in that report, the actuarial assessment, STATIC 99 assesses historical risk factors. Therefore it would be unlikely that an assessment conducted for the current hearing would return results very different from those returned in 2011. However as noted, in their report, the Forensic Psychologists in that report stressed the relevance of dynamic factors to BWE’s risk of reoffending.

96. Counsel for the Respondent submits that the Tribunal report of the psychiatrist author of the December report should be given little weight. She notes that the psychiatrist was not fully informed of BWE’s psychiatric history. The Tribunal accepts that this lack does reduce the weight that can be placed in the psychiatric assessment. However in terms of the matters before the Tribunal:

1. The illness with which BWE was diagnosed in 2011 was one which, by definition lasts for only up to six months.

2. BWE was discharged from mental health services in 2012.

3. BWE has no current mental health diagnosis.

101. It is more than five years since the index offence. The Tribunal is satisfied having considered the evidence, including that of what were described by Counsel for the Respondent as non-criminal violent acts by BWE, there have been no matters of weight raised regarding BWE’s behaviour and that the dynamic risk factors referred to by the Corrective Services Forensic Psychologists have been addressed.

102. BWE has never committed an offence against a child. The Tribunal accepts that it was fortuitous that there was no child present at the time of the index offence. However there is no evidence that it would be more likely than not for a future offence committed by BWE to involve a child.

The reliability of BWE as a witness

103. The Tribunal considered the submission that BWE was not a reliable witness.

1. During the hearing BWE required assistance to read material put to him and the Tribunal formed the view that he had very limited literacy.

2. BWE was sometimes confused about questions put to him and the Tribunal formed the view that his ability to understand complex propositions was limited.

3. BWE was exposed to lengthy and intensive cross-examination.

104. Taking these matters into account as well as the general demeanour of BWE, the Tribunal is of the view that he gave evidence to the best to his ability.

Section 28(5) of the Act

105. The Tribunal also took into consideration the submission of the Counsel for the Respondent that BWE is in breach of s.28(5) of the Child Protection (Working with Children) Act because he failed to provide full information including details of his drug and alcohol use, his psychiatric history and some past incidents which Counsel described as violent or aggressive.

106. The matter of lack of full disclosure for applicants seeking an enabling order under the Act was considered by the Supreme Court in the matter of BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126. In that matter, Adamson J said:

13 Although the disclosure obligation is imposed on an applicant for an enabling order, the extent to which it is complied with is not expressly included within the list of mandatory relevant considerations in s 30(1) of the Child Protection Act. The terms of the Child Protection Act do not express what consequences, if any, are to flow when an applicant for an enabling order fails to comply with the obligation imposed by s 28(5). There is no express provision to the effect that where there has been an established failure to make full disclosure of relevant matters, the Tribunal is not obliged to consider the application or to have regard to the matters identified in s 30(1) of the Child Protection Act. No such provision can be implied.

14   Lack of full disclosure could fall for consideration within s 30(1)(j) of the Child Protection Act, which requires the Tribunal to consider “any information given by the applicant in, or in relation to, the application”. It might also fall for consideration by reason of 30(1)(k), but only if the Children’s Guardian thought it necessary.

15   If an applicant’s failure to comply with the obligation indicates a lack of insight, or dishonesty, the failure may be relevant to the question whether an enabling order ought be made because it is relevant to the assessment of risk and the paramount consideration of the operation of the Child Protection Act: namely, the safety, welfare and well-being of children and, in particular, protecting them from child abuse. However, if an applicant’s failure to disclose relevant matters arises from a lack of appreciation of their relevance or imperfect recollection, the failure may be immaterial to the question whether an enabling order ought be made and immaterial to the safety, welfare and well-being of children.

The disclosure called for is full disclosure of any matters relevant to the application. This will depend on the nature of the application which, in turn, in circumstances where the need for the enabling order arises by reason of a disqualifying offence, depends on the nature of the disqualifying offence and any associated criminal conduct or allegation of criminal conduct. Full disclosure in such a case would require an identification of circumstances of any offence of which the applicant was found guilty, together with the sentence imposed and a description of any other allegations made or charges laid. The evident purposes of the obligation imposed on the applicant to “fully disclose to the Tribunal any matters relevant to the application” is to enable the Children’s Guardian to investigate facts relevant to the factors listed in s 30(1) of the Child Protection Act (for the purposes, in part, of deciding whether to support or oppose the application) and to enable the Tribunal, at the hearing of the application, to consider these factors in a substantial way.

107. As outlined previously in these Reasons the Tribunal does not accept that the three incidences described as violent by Counsel for the Respondent are matters that materially impact on the assessment of risk posed by BWE. Accordingly the Tribunal is not satisfied that in failing to disclose them BWE failed to disclose relevant information.

108. In relation to BWE’s mental health history, BWE’s application includes an affidavit from the nurse who counselled him from April 2010 to February 2011 and refers to his treatment by the Mental Health Team including his treatment by a psychiatrist at that the Mental Health Centre. The Tribunal is satisfied that there has been no attempt to keep from the Tribunal details of that treatment and the information provided is such that it could facilitate a further investigation by the Children’s Guardian of the details of treatment. The Tribunal notes that it was, in fact provided with detailed notes from the counsellors and doctors who treated BWE.

109. To the extent that BWE failed to disclose details of his historical mental health treatment to the authors of the November and December report, the Tribunal has taken that into account in assessing the content of those reports.

110. In his affidavit BWE says that he rarely drinks alcohol and has abstained from other drugs completely. The November and December reports reflect his comments to the authors of those reports that he has abstained from the use of both alcohol and other drugs. BWE’s oral evidence is to the effect that fact he has used alcohol and substances occasionally. The Tribunal accepts that occasional use is not abstention. However in respect of his stating to the authors of the November and December reports that he has abstained from using alcohol as opposed to drinking rarely, the Tribunal is not satisfied that the difference is substantial enough to cause the Tribunal to form an adverse view of the material supplied by BWE.

111. In respect of BWE’s claim to have abstained from use of other substances when he admitted in his oral evidence that he has used cannabis occasionally, the Tribunal is satisfied that this is a material fact. However the Tribunal is not satisfied that the disparity is sufficient to reflect on the risk posed by BWE.

Conclusion

112. Taking all of these matters into account the Tribunal is satisfied that the applicant has an understanding of what led to the index offence and prior violent offending and he has taken steps to ensure he does not reoffend.

113. Accordingly, the Tribunal is satisfied that the applicant has discharged his onus and has rebutted the presumption that he poses a real and appreciable risk to children and on that basis it is appropriate for the Tribunal to make an enabling order.

114. Orders:

1. The applicant is not be treated as a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012 in respect of the offence of committing an act of indecency with a person over the age of 16 years contrary to s. 61N of the Crimes Act 1900 of which he was convicted on 6 April 2011.

2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children clearance

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

Registrar

Decision last updated: 19 August 2016