BWM v Children's Guardian

[2016] NSWCATAD 134

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BWM v Children’s Guardian [2016] NSWCATAD 134
Hearing dates:	18 December 2015
Date of orders:	05 July 2016
Decision date:	05 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member Dr B Field, General Member M O’Halloran, General Member
Decision:	The applicant’s application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person – whether applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children
Legislation Cited:	Child Protection (Working with Children) Act 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Children and Young Persons (Care and Protection) Act 1989 Civil and Administrative Tribunal Act 2013 Crimes Act 1900
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	BWM (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: BWM (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510258
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for decision

Introduction

1. The applicant, BWM, is a “disqualified person” under subs 18(1) of the Child Protection (Working with Children) Act 2012 (the WWC Act) and he seeks an enabling order, under subs 28(1) of that Act, so that he can obtain a working with children check clearance under that Act.

2. Given the sensitive nature of these proceedings, the Tribunal has made a non-publication order under subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication and broadcasting of the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child without the leave of the Tribunal. For this purpose the pseudonym BWM has been used when referring to the applicant’s name.

3. The applicant is a “disqualified person” because he was convicted of a schedule 2 “disqualifying offence”, on 20 December 2006. The offence was an offence of “sexual assault (Cat 4) indecent act with person under 16 years” contrary to section 61E of the Crimes Act 1900: see WWC Act schedule 2, cl 1(d). The applicant’s offending conduct occurred in May 1989. The victim of the offence was the eleven-year old daughter of a friend of the applicant with whom he was residing at the time. The applicant reported the incident to police eleven years later, in December 2000. He was not charged until May 2006. The delay was due to police not being able to obtain a statement from the victim until 2005. The applicant was charged with two counts of sexual assault under section 61E of the Crimes Act 1900. He pleaded guilty to the offences and was given a four month suspended sentence of imprisonment on the condition he entered a bond to be of good behaviour for four months.

4. By reason of his disqualifying offence, in these proceedings, there is a statutory presumption that the applicant poses a risk to the safety of children, unless he proves the contrary: WWC Act subs 28(7).

Background

5. The applicant is 69 years of age. He is a Vietnam Veteran and has been in receipt of the Veterans Affairs Totally and Permanently Incapacitated Pension since 1998, due to a diagnosis of Post Traumatic Stress Disorder (PTSD).

6. In more recent years the applicant has been providing assistance to his daughter and her sisters who are authorised out-of-home carers under the Children and Young Persons (Care and Protection) Act 1989. The applicant has occasionally assisted his daughter and her sisters in caring for the foster children in their care. He has been doing so with the approval of the agency responsible for the management of the day-to-day placement of the foster children in the care of the applicant’s daughter and her sisters. As the applicant lives many miles away from where his daughter and her sisters live, he resides with his daughter and the foster children when he is called upon to assist.

7. With the coming into force of the WWC Act in June 2013, the applicant was required to obtain a working with children check clearance from the respondent in order to continue to assist his daughter and her sisters as he has been doing for some years: see WWC Act, subs 10(1).

8. On 24 April 2015 the respondent refused his application for a clearance, as she was required to do under subs 18(1) of the WWC Act, because he was a “disqualified person.”

9. On 15 May 2015, the applicant made this application for an enabling order. The applicant also sought a stay of the decision of the respondent pending determination of his application: See WWC Act, subs 30(2). On 21 May 2015, the Tribunal granted a stay of the respondent’s decision on the condition the applicant did not engage in any child-related work other than the voluntary work he was doing in assisting his daughter to look after the foster children in her care.

10. The applicant’s application was heard on 18 December 2015. At the conclusion of the hearing we reserved our decision. The respondent did not seek to have the stay set aside and did not object to the applicant’s request that the stay be extended to include assisting the sisters of his daughter with the foster children in their care.

11. We have now carefully considered all the material that was before us and for the reasons set out below we are not satisfied the applicant has discharged his onus and rebutted the presumption that he poses a risk to the safety of children. As we have noted, we must consider the statutory presumption in the context of the broad spectrum of child-related work as defined in the Act and not in the more limited context for which the applicant has sought a clearance. In the limited context for which the applicant seeks a clearance, there is no evidence of the applicant having acted inappropriately. Nor has the respondent pointed to any particular concerns about the applicant in this limited role. We accept the applicant has made changes to his life subsequent to the disqualifying offence. These changes having occurred after he was diagnosed with PTSD in 1997 and sought treatment, which he has made a commitment to continue. Since his disqualifying offence he has not committed any further offences and is in a supportive relationship and has the support of his daughter and her sisters. While these are all factors in his favour, in our view, having regard to the paramount consideration in section 4 of the WWC Act, on balance, we are not satisfied the applicant has discharged his onus because of the seriousness of his disqualifying conduct and his lack of understanding and insight into his offending conduct. This, we acknowledge might be addressed through specific sexual assault counselling relating to his disqualifying conduct.

The WWC Act

12. The WWC Act came into force on 15 June 2013. The objects of the Act are set out in section 3 as follows:

“3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.”

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

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

15. Subsection 8(1) of the WWC Act prohibits a person from engaging in “child-related work”, unless: (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

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

17. The term “child-related work” is broadly defined in section 6 of the WWC Act. It includes the role of an authorised carer: WWC Act, subs 6(3)(c).

18. A “worker” is defined in subs 5(1) of the WWC Act to include a person who is engaged in work as a volunteer.

19. Sections 10, 11 and 11A of the WWC Act make provision for other persons who must have a clearance. As we have noted, subs 10(1) requires an adult person (other than an exempt person) who “resides” on the same property as an authorised carer must also be the holder of a clearance. The words “reside on a property” is defined in section 5A of the WWC Act to mean “a person resides on a property if the person resides (which includes sleep on a regular or frequent basis) anywhere on the property (whether or not in a building, caravan, structure, vehicle or other thing.” Part 4 of the Child Protection (Working with Children) Regulation 2013 sets out the circumstances where a worker and employer are exempt from the provisions of the Act. We understand the applicant’s circumstances in which he assists his daughter and her sisters, does not fall within the provisions of this Part. Nor is it a matter relevant to the Tribunal’s determination of the applicant’s application.

20. As we have noted, what is before us is the applicant’s application for an “enabling order” under section 28 of the WWCT. That section relevantly provides:

28   Orders relating to disqualified and ineligible persons

(1)  The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2)  …

(3)  A disqualified person may make an application under this section only if:

(a)  the person has been refused a working with children check clearance, or

(b)  the person’s clearance has been cancelled,

because the person is a disqualified person.

(4)  The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5)  An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6)  …

(7)  In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8)  An enabling order may not be made subject to conditions.

(9)  (Repealed)

(Bold added)

21. Section 30 sets out the matters the Tribunal is required to consider in determining an application for an enabling order. That section is in the following terms:

“30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person …,

(b) the period of time since those offences … occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences … occurred,

(d) the age of each victim of any relevant offence … and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

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

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences … and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(k) any other matters that the Children’s Guardian considers necessary.”

22. The meaning of the word “risk” was considered by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. It was considered in the context of the former Child Protection (Prohibited Employment) Act 1998. At [42], His Honour made the following remarks in regard to the word “risk”:

“What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children."”

23. These remarks have been accepted to equally apply to the word “risk” as it appears in the current WWC Act: see AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 (BKE), at [26]. That is, “risk” in the context of the WWC Act also means a real and appreciable risk to the safety of children.

24. In BKE, at [27], His Honour Justice Beech-Jones noted that in determining whether to grant an enabling order under section 28 of the WWC Act the Tribunal is to consider the issue of risk to children the context of the very broad characterisation of child-related work as defined in the Act and not in the limited context for which the applicant seeks a clearance.

Evidence

25. In support of his application the applicant tendered into evidence the following material:

• statutory declarations of he made and dated 15 July, 17 July, 21 July and 13 October 2015;

• a statutory declaration of the applicant’s daughter dated 3 July 2015;

• a statutory declaration of the two sisters of the applicant’s daughter, respectively dated 29 and 30 June 2015;

• a report of Anthony Weaver, the applicant’s Clinical Psychologist, dated 26 June 2015 and 16 September 2015;

• a report of Associate Professor Gordon R W Davies, dated 14 September 2015;

26. The respondent relied on three bundles of documents. The first and largest bundle of documents (73 pages) contained copies of the respondent’s notice of disqualification, the applicant’s application to the Tribunal, correspondence between the respondent and the applicant’s solicitor and copies of responses the respondent had received following her enquiries NSW Police Service, the Local Court, Corrective Services, the Department of Education (Employee Performance and Conduct Directorate and the Probity Unit) and the applicant’s current employer.

27. The second bundle of documents consisted of a one page short response from the applicant’s previous employer. The third bundle of documents are copies of documents produced by Mr Jones, pursuant to a summons issued by the Tribunal, at the request of the respondent.

Consideration

28. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children by persons working in child-related work. As we have noted, the applicant is a disqualified person by reason of his 2006 conviction and the onus is on him to rebut the presumption that he poses a risk to the safety of children.

29. The applicant contends he does not pose a risk to children. He states he is a different person to the person he was in 1989 when the offending conduct occurred. He said he is a different person after being diagnosed and treated for his longstanding PTSD. He continues with his treatment and is committed to doing so for the rest of his life.

30. As noted above, the applicant is a Vietnam Veteran having served in Vietnam, in 1968, for a period of 6 months. At the time he commenced serving in Vietnam, the applicant was newly married with a baby daughter, his only child. When he returned from Vietnam, his relationship with his wife deteriorated and he became estranged from his daughter. The applicant said this was not because he wanted to be estranged from her – it was his wife/ former wife who did not allow any contact with his daughter. The applicant said he nevertheless always wanted to be reunited with his daughter, which he did do when she was an adult and they have had an ongoing close relationship since then.

31. Following his 1997 diagnosis of PTSD, the applicant has managed/controlled the symptoms of his disorder, including his levels of anxiety, through ongoing treatment (i.e. medical and psychological). He said his diagnosis of PTSD is something he lives with every day. It is not something that will go away and he is committed to being a better person by taking his medication and seeking help when needed.

32. Set out below, is the evidence and our findings in regard to the matters prescribed in subs 30(1) of the WWC Act.

S 30(1)(a) - the seriousness of the offence with respect to which the applicant is a disqualified person

33. As noted above, the applicant pleaded guilty to two counts of having assaulted the victim and at the time of such assault committed an act of indecency with her. The offence of which he was charged on each count was an offence under section 61E(2) of the Crimes Act 1900, as it applied at that time. Each offence was alleged to have occurred some time between May 1989 and 1990. The maximum penalty for this offence at the time was imprisonment for 2 years. The applicant was given a four month suspended sentence on the condition he entered into a good behaviour bond for four months.

34. The Police Fact Sheet (the Fact Sheet) relating to the offences noted the victim’s mother had left the marriage and moved back to Queensland leaving her husband (the applicant’s friend). The victim’s mother also left her and her older siblings with her husband. The older siblings moved out leaving the victim the only child at the home with her father.

35. During the latter part of 1989 the applicant moved into the home of the victim and her father. The applicant had previously been in a relationship with the sister of the victim’s father and had been a friend of the family for 12-18 months. While living at the victim’s home the applicant was employed in a car yard and would travel to and from work in a car from the car yard. Every couple of nights he would bring home a different car, some of them were new.

36. The Fact Sheet went on to say, the applicant would often take the victim for a ride in the car. He would always take the victim to a place called “The Dairies”. It was a long tarred road that ran off the main road and it was usually deserted. It was noted the victim’s father remembered some of these trips and he recalled seeing the victim was always seated in the front passenger seat.

37. The Fact Sheet noted, the victim had recalled that on one occasion the applicant said she could steer the car, and to facilitate this, she sat on his lap and gripped the steering wheel while the applicant operated the pedals. It was during this time that the applicant put his hand inside the victim’s clothing and rubbed the outside of her vagina. This occurred on more than one occasion.

33. The Fact Sheet noted, the victim had recollected that after Christmas 1989, the applicant started coming into her bedroom at night where he would lay down with her on her bed and engage in similar conduct. The applicant would remain on the bed for around half an hour. Again the victim recollected that this occurred on more than one occasion.

34. The applicant left the home of the victim after approximately 12 months and did not have any further contact with the victim until she was 16 years of age (i.e. mid 1990’s). By this time the victim had developed a drug habit. When she was 17 years of age she contacted the applicant as she had been charged with offences of theft. The applicant paid her fine and did not have any further contact with her until 1999, when she was 21 years of age.

35. In 1999, the victim contacted the applicant and told him that she needed money. The Fact Sheet noted the victim had a significant drug habit at that time. The applicant then gave the victim upwards of $200.00 at a time and on one occasion bought her a washing machine. About a month later the applicant left his employment and lost contact with the victim.

36. The Fact Sheet noted that, in December 2000, the applicant went to the local police station and made admissions as to his offending conduct. He participated in a record of interview where he repeated the admission. He told police that over the years he had resumed contact with the victim and thought “she was handling it well” and that she had asked him for money. He said while he was okay with giving her money to help her out at no time did he offer it to her in return for her silence. The Fact Sheet notes the applicant said, “I just helped her out when she needed it,” but in the end his finances did not allow him to continue assisting her. The applicant said to police:

“…I know she suffers humiliation with her family and that, now it’s my turn…over the years I have given her financial assistance…she demanded money after money….and I thought she was alright with that…that’s one of the reasons I’ve come forward. And the other reason is that I just want to take this weight off my mind and come clean…”

42. The Fact Sheet noted police contacted the victim after their interview with the applicant and she indicated she wanted to make a statement. However, because of her drug addiction police had difficulties contacting her again until early 2005. A statement was finally obtained from the victim and it is recorded that during the intervening years the victim had successfully completed a drug rehabilitation course and was continuing with drug and alcohol counselling.

43. In our view, notwithstanding the light sentence imposed on the application by the Court, the applicant’s offending conduct for the purpose of this application was serious. The victim was very young and the applicant was a middle aged adult in a position of trust. Even though the applicant was only charged on two counts, it is evident from the Fact Sheet that the offending conduct was not an isolated incident.

44. In his Statutory Declaration the applicant said he strongly felt remorse at having done what he did. He said in no way was the victim to blame. He said he was “derelict” in his duty of care and stewing about what he had done and what affect it must have had on the victim. He said he showed hatred of himself and strong remorse for the victim. He said as a man and a father he had to give himself up. He also said he had to become a better moral and stable person no matter what it took. He said this meant that he had to avoid “the stigma that Viet Nam Vets suffer specifically and also the stigma attached what I had done to [the victim] because that would undoubtedly have led to serious depression.”

S 30(1)(b) - the period of time since the disqualifying offence and the conduct of the applicant since they occurred

45. It is 25 years since the applicant committed the disqualifying offences. He has committed no further offences since that time.

46. In 1997, the applicant consulted a psychiatrist, Dr James J Nichols. In his report, dated 7 July 1997, Dr Nichols said,

“The applicant had ceased work because of his inability to function due to the symptoms of his PTSD and its interference in his ability to maintain interpersonal relationships. It was noted that the effect of the PTSD was difficulty in expressing emotive feelings which had been replaced by irritability and outbursts of anger.”

47. Dr Nichols noted that the PTSD was a permanent disability with persistent symptoms of anxiety, depression and intensification of phobias. Dr Nichols identified the PTSD had arisen following the applicant’s time in Vietnam.

48. Following his diagnosis of PTSD the applicant underwent treatment. He became the primary carer of his mother for 6 years. His mother died about 18 months ago and during this time he has maintained an ongoing relationship with his daughter and her sisters. The applicant also has a partner. They do not live together but have been together for many years.

S 30(1)(c) - the age of the applicant at the time the disqualifying offence occurred

49. The applicant was around 43 years of age at the time the disqualifying offences were committed.

S 30(1)(d) - the age of the victim at the time of the disqualifying offence and any matters relating to the vulnerability of the victim

50. The victim was 11 years of age at the time of the disqualifying offence. As noted above, the victim was the daughter of the man in whose home the applicant resided at that time. She was also the young niece of the woman the applicant had been having the relationship with.

51. The victim was especially vulnerable given her young age and the break-up of her parents and the family generally. The applicant on the other hand was an adult living in her home and in a position of trust.

S 30(1)(e) - the difference in age between the victim and the applicant and the relationship (if any) between them

52. The difference in age between the applicant and the victim was approximately 31 years.

S 30(1)(f) - whether the person knew, or could reasonably have known the victim was a child

53. The applicant acknowledges that he knew the victim was a child.

S 30(1)(g) - the applicant’s present age

54. The applicant is now 69 years of age.

S 30(1)(h) - the seriousness of the applicant’s total criminal record and the conduct of the person since the offence occurred

55. The applicant was convicted of a number of offences prior to the disqualifying offences. These include an offence of house breaking and unlawful conversion of a motor vehicle when he was 16 years of age. In 1976 he was convicted of false pretences and presenting a cheque that was not met on presentation and was fined $100.00 on each charge.

56. In 1992 he was convicted of three counts of fraudulent misappropriation. On the first count his sentence was deferred on the condition he entered into a bond to be of good behaviour for 2 years. In regard to the other two counts he was ordered to pay fines of $100.00 each as well as witness expenses and compensation.

57. In 1984 he was convicted of embezzlement and fined $250.00 and ordered to pay the witness expenses.

58. In 1987 he was convicted of stealing and ordered to serve 59 hours community service and pay compensation. The applicant’s offending the subject of the disqualifying offences occurred two years after this offence. While he was not convicted of the disqualifying offence until 2006, there is no record of the applicant having offended again since 1989.

S 30(1)(i) - the likelihood of any repetition by the applicant of the offence or conduct and the impact on children of any such repetition

59. As we have noted, the applicant contends he is unlikely to re-offend, as he has chosen another path and has not re-offended since that time. He said he has been able to choose another path once he was diagnosed with PTSD for which he has been treated and continues with his medication and ongoing psychological help.

60. The applicant’s clinical psychologist, Mr Weaver agreed. In his report of 16 September 2015, Mr Weaver said that he believed the offending conduct:

“…most likely occurred in a period of [the applicant’s] life when he was [at that point] mentally disordered and regularly intoxicated, left in the care of a vulnerable child in a household where the other adult [the child’s father] did not practice proper care and supervision.”

61. He went on to say that based on his many years of close observations of the applicant he felt that the likelihood of him re-offending was minimal. He said he was not willing to say that the applicant’s risk of offending was zero, because he did not feel it was possible to say that any person, whether male or female, should be regarded as being zero risk. However, he did say he felt the applicant was now a safe person to be placed to care for children.

62. The applicant began seeing Mr Weaver in 2000. He was referred to Mr Weaver for the purposes of his PTSD. In his report, Mr Weaver said the applicant informed him of his offending conduct in about 2002.

63. In his oral evidence and in response to questions asked of him of counsel for the respondent, Mr Weaver said the following:

“…my impression of people in general is that radical personality change is possible, so people can become not what they were formerly, even though of course they need to be monitored just in case the personality change isn’t as profound as it may appear. My subjective impression is that – on the basis of knowing him for a lengthy period, and over that lengthy period never having seen anything that would look remotely like manipulation or grooming type behaviour. Admittedly I have only seen him in the context of adult groups and counselling.

Nonetheless it is my subjective opinion that his personality is now stable enough in a functional level that as I see it in my report I would have no concerns over and above any other, an unfamiliar adult left in the care of children in that a risk always has to be assessed with an adult caring for any child.

I must say that I would not agree that he would be a risk if his symptoms deteriorated because (a) I think he shows good symptom management and would look after his symptoms but my subjective impression is that his personality in all the time I’ve known him is that of a non-abuser.”

[Transcript, P49 at 16-34].

64. At the conclusion of his cross examination, counsel for the respondent asked Mr Weaver whether he had treated the applicant for his attraction to children. Mr Weaver responded:

“No, because from the time I’ve been working with him it wasn’t mentioned as an ongoing present problem so, no I had not.”

[Transcript, P50 at 14-15]

65. In re-examination Mr Weaver said he did remember he had considered the question carefully and in his judgment he was of the view that the applicant was not a risk to children, because he felt the applicant was aware of risk factors and they were no longer present. Mr Weaver added the applicant had also undergone a substantial personality change. He said he was unlikely to become unstable again, and even if he did become unstable it would be in the context of being an altered personality. Mr Weaver concluded by saying that instability by itself would not restore the applicant to being a risk.

66. We note the applicant has been in a close and stable relationship with his partner for 10 years. They do not live together, but his partner, in her statement said they love each other and have been planning a life together “once various issues have been resolved.” His partner noted the applicant had been looking after his mother for eight years and continued to do so until her passing about a year ago. She said she had supported the applicant with his PTSD issues and has witnessed the relationship the applicant has with his daughter, grandchildren and foster children and believed he would do nothing detrimental to any child.

67. In the Pre-Sentence report, dated 20 December 2006, the following is recorded in regard to the applicant’s offending conduct:

“[The applicant] admits the offences, and expressed remorse and shame for his behaviour. Whilst he acknowledges that the victim was a victim he demonstrated minimal empathy toward her. It is suggested that [the applicant’s] disclosure in relation to these offences is largely motivated by his need to continue his PTSD recovery.”

68. The report nevertheless noted that the risk of re-offending was low.

69. In his Pre-Sentence report under the heading “Relationships/Social Factors” it was suggested that the applicant’s offending appeared to be related to his anger and frustration with his ongoing lack of success with appropriate personal relationships at the time.

70. In a case note report, dated 27 November 2006, is a record of an interview a Probation and Parole Service Officer had with the applicant (Exhibit R2, P90). It was noted that little time was spent in trying to establish how the applicant began to think about the victim in a sexual way. The note went on to say:

“Cl [i.e. the applicant] maintains that he doesn’t know and simply cannot understand his behaviour. Cl then suggested he was unsure if the victim initiated it or not. I reminded cl of the victim’s age at the time of the offence and then he acknowledged that he was responsible for the behaviour, but still described the victim as “precocious and affectionate”. Cl suggested that he was “in love” with the victim’s older sister…., who was in her early – late 20’s at the time, and had three children of her own, and whilst he had a very short sexual relationship with her, he suggests he was generally having problems with other women.”

71. The supervision disclosure summary as contained in the documents produced by the Department of Corrective Services, notes the applicant’s response to supervision was considered borderline. In this regard it was noted his ongoing non-disclosure regarding his offending to significant others compromised the ability of the Probation and Parole Service to vary his compliance. (Exhibit R2, P11).

72. In his report Dr Davies also said that the applicant’s circumstances had changed since 1989 when the disqualifying offences were committed. Dr Davies concluded by saying:

“In making an assessment there are a number of factors involved. While from a statistical point of view (using the Static-99R) the risk is low (risk ratio being less than one third of that of an ordinary person in the general community). This reflects [the applicants] age and it is probably more appropriate to look at the individual items involved. Apart from the particular offences for which [the applicant] was convicted in December 2006 he has a number of prior offences including stealing, fraud and false representations. These represented a degree of social irresponsibility but I note that there are no charges involving violence. I also note that while the victim was not a blood relative she had closely acquainted with him for some time prior to the offences. Finally, I note that [the applicant] had a long and documented history of psychological difficulties and that he remains under treatment and psychological surveillance because of this.

Overall at this point I would take the view that the risk to [the applicant’s] daughter’s foster child is low enough to permit him to have access to them in the ordinary course of family life.”

73. In his oral evidence and in response to questions asked of him by counsel for the respondent, Dr Davies said that in his opinion, the applicant could have children in his family stay with him over night, at his home, without supervision and without anyone else being there. He also said that in his opinion, at the present time, the applicant’s risk was also low in regard to children who were not his family. He said overall, he regarded the applicant’s risk as being low, but acknowledged there always was a risk. However, at this time he thought the risk was not unexceptional and it would be okay. He went on to say that,

“At this point I don’t see he is an unusual risk separate from an ordinary person in the community.”

[See Transcript P41]

74. In response to a question that we asked about the relationship between the applicant’s PTSD and the offending conduct, Dr Davies said,

“He had PTSD and it was probably a relevant factor in the offences in the sense that the disorder made him vulnerable to seeking affection in inappropriate ways at that time.“

[Transcript at P43, L47]

75. In cross-examination, counsel for the respondent asked Dr Davies if he was familiar with DSM5 and the diagnostic criteria for “paraphilia” and “paedophilia” within it. Dr Davies said he was familiar with it but did not “particularly approve of it” [Transcript P37, L39]. The DSM5 we understand to be a reference to the fifth edition of the Diagnostic and Statistical Manual for Mental Disorders published by the American Psychiatric Association. The respondent did not tender into evidence a copy of the publication. Instead, counsel asked Dr Davies whether he had taken these criteria into account in assessing the applicant’s risk especially as the offending conduct was not isolated and the applicant had acknowledged that he was attracted to the victim at that time. However, Dr Davies said the applicant had not told him that his attraction to her continued after that time. In response to counsel’s question as to whether he took the DSM5 criteria for paedophilia into account in his assessment of the applicant’s risk, Dr Davies said:

“No I’d actually be looking at it the other way around, I’d be looking at the risk at present I wouldn’t be - you know, as I said, you’d make the diagnosis at the time, so that’s obviously got to be considered, but that doesn’t necessarily apply to the present, and if you are doing risk you are looking at risks now and simply having had that diagnosis available to you in the past doesn’t automatically make the risk now.” [Transcript P37, L26-31]

76. Dr Davies explained that the DSM5 were not tests. He said the publication was drawn up as a “broad criteria particularly with an eye to research” so that there is “some harmonising of diagnoses” so that those doing research in the area of mental health know they are talking about roughly the same group of people and “they are not in fact hard and fast diagnoses like somebody having appendicitis, they overlap, they’re grey at the edges …”. [Transcript P42, L46 and ff]

S 30(1)(j) any information given by the applicant in, or in relation to, the application

77. The applicant, as we have noted, said he was a changed man from the man he was in 1989 when the offences were committed. The change having occurred once his PTSD was diagnosed and he accepted he needed treatment. Treatment is life long he said.

78. That his life has changed is evidenced in the material before the Tribunal. He was a supportive son to his mother for many years and now supports his daughter and her sisters. However, it is also evident that he remains prone to bouts of anxiety when stressed. These proceedings being an example of where this has occurred and where he has spoken loudly and made inappropriate and poorly considered remarks. At the same time the applicant appears to recognise when he is stressed and he seeks help from his psychologist.

S 30(1)(k) any other matters that the respondent considers necessary

79. In her submissions, counsel for the respondent submitted the applicant did meet the criteria for paedophilia. She also noted the applicant had not demonstrated any empathy for the victim. Nor had he attended any sexual abuse counselling or any specific counselling directed towards the indecent assault on a child. It was submitted that if his circumstances were to change and he again became unstable the Tribunal could not be satisfied that the applicant would not be a risk to children generally or a specific girl because the applicant has said he does not know why he offended. As to the risk of becoming unstable, counsel for the respondent submitted the Tribunal had the benefit of seeing the applicant and that despite the evidence of Mr Weaver, the applicant’s anxiety was evident and his behavioural controls were not manifest.

79. The respondent submitted the applicant had not discharged his onus in rebutting the presumption that he poses a real and appreciable risk to children.

Conclusions and orders

81. The question for determination by us is whether, having regard to the material before us and taking into account the matters prescribed in subs 30(1) of the WWC Act, the applicant has discharged his onus and rebutted the presumption that he poses a risk to the safety of children by reason of his 1989 disqualifying offences. In determining this matter, we must also take into account the requirements of s 4 of the WWC Act; namely 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.

82. As we have noted, the disqualifying offence of which the applicant was convicted was very serious. It was not an isolated incident and involved a vulnerable 11 year-old child, who had been entrusted into the applicant’s care. The applicant says he accepts full responsibility for his offending conduct. He has not said it occurred because of his PTSD, which was diagnosed subsequently. What he does say is that his life was chaotic at that time because of his undiagnosed PTSD. It would appear that through his treatment for PTSD he came to understand the consequences of his offending conduct and this motivated him to go to police and report what had occurred. This, however, does not in our view lessen the seriousness of his offending conduct. The question is whether he has provided sufficient evidence to establish that he no longer, as at the date of hearing, is a real or appreciable risk to the safety of children.

83. In this regard the factors in his favour are that he has not committed any further offences of this kind in the 25 years since the occurrence of the disqualifying offences. Nor had he committed an offence of this kind previously. Mr Weaver and Dr Davies both said that in their opinion the likelihood of the applicant reoffending was low. That is, there was no real or appreciable risk of the applicant re-offending in this way today, or that he otherwise poses a risk to the safety of children. Their remarks are made in the limited context of the applicant assisting his daughter and her sisters in caring for the foster children in their care.

84. As we have noted we must consider the applicant’s applicant in the much wider context of child-related work as defined in the WWC Act, because a clearance, if granted, is a clearance to do any child-related work.

85. In this regard, we are satisfied the applicant has made significant changes to what he described as his former chaotic life. He has accepted his diagnosis of PTSD and has been vigilant in taking his medication and to seek counselling when necessary. We understand the respondent’s reservation about the applicant’s ability to control his levels of anxiety when stressed. In our view, the behaviours exhibited by the applicant during the hearing were not necessarily indicative of risk in the relevant sense. They were in general indicative of his illness, age, background and the situation he found himself in as an unrepresented litigant, with an onus to discharge.

86. We accept the applicant is in a supportive relationship and also has the support of his daughter and her sisters. The respondent we note had no objection to the stay order being extended to the applicant providing assistance to the sisters of his daughters in caring for their foster children.

87. Our only reservation relates to the applicant’s understanding of and insight into his offending conduct. In his evidence he acknowledged he was attracted to the victim – why he was so attracted he said he did not know but he has not offended since and does not have any attraction to children now. He said something must have happened that allowed him to part company with his morality at that time (see Transcript p20, line 17 and 18). When asked whether he has had any sexual assault counselling the applicant said he had not had counselling because the forensic psychologist who had assessed him at the time of the criminal proceedings had categorised him at low risk. He also said that at that time he had “no urges to you know.” He went on to suggest that as a TPI pensioner he could have chosen a different path to the one he chose, which was to live at home and support his family. We accept the applicant chose this path and he has made a positive commitment to remain on his PTSD treatment and continue on his chosen path. However, this does not of itself address an ongoing lack of insight and understanding as to why he offended. In our view, while we accept that from a statistical point of view the applicant’s risk of re-offending as he did in 1989 is low, we are not satisfied he has any real insight or understanding of why he offended as he did. While he has said he takes full responsibility for what he did, he does so in the context of having become a changed person after being diagnosed with PTSD and not in the context of an understanding about why he offended and what he has done and should do to avoid a similar situation arising.

88. This lack of understanding and lack of insight might be addressed through appropriate sexual assault counselling. However, in the absence of such counselling, we are unable to satisfied that he has discharged his onus that he is not a real and appreciable risk to the safety of children in the wider context of child related work as defined in the WWC Act.

89. We would encourage the applicant to undertake the necessary counselling if he wishes to pursue his application for a clearance under the WWC Act. In the event he does undertake such counselling and the respondent is satisfied that this gives rise to a change in circumstances we recommend the respondent accept an early application from the applicant under section 13A of the WWC Act. While the respondent would nevertheless be required to refuse that application, this refusal would enable the applicant to make a further application for an enabling order.

90. However, for the purpose of this application, for the reasons set out above we find the applicant has not discharged his onus and the appropriate order is to dismiss his application.

ORDER:

The applicant’s application is dismissed.

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: 05 July 2016