BXL v Children's Guardian

[2016] NSWCATAD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BXL v Children’s Guardian [2016] NSWCATAD 36
Hearing dates:	11 November 2015
Date of orders:	23 February 2016
Decision date:	23 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior Member R Royer, General Member N Heffernan, General Member
Decision:	The application is refused
Catchwords:	ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - whether applicant has discharged his onus to establish the contrary – meaning of risk
Legislation Cited:	Crimes Act 1900 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW Commission for Children and Young People Act 1998 NSW Child Protection (Working with Children) Act 2012 NSW Civil and Administrative Tribunal Act 2013 NSW
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 111 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Commission for Children and Young People v V[2002] NSWSC 949 ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 RV v Commission for Children and Young People [2007] NSWADT 299 BHA v Children's Guardian [2014] NSWCATAD 161 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 Civil and Administrative Tribunal Act 2013 NSW
Category:	Principal judgment
Parties:	BXL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson (Respondent)   Solicitor: NSW Crown Solicitor’s Office (Respondent)
File Number(s):	1510325
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 BXL in this decision, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s 6 of the Act.

2. Section 18(1)(a) of the Act establishes that where a person is convicted of an offence specified in Schedule 2 of the Act, that person is a disqualified person, to whom the Children’s Guardian must not grant a working with children clearance.

3. The offences which bring the applicant within subsection 18(1) of the Act (the index offences) are convictions on 7 April 2004 on five counts of aggravated indecent assault of a victim under the age of 16 years in contravention of section 61M of the Crimes Act 1900 NSW. The notice by the Office of the Children's Guardian advising the applicant of his disqualification for a working with children check clearance is dated 22 May 2015.

4. The application seeking an enabling order is dated 30 July 2014 and was filed on 11 June 2015.

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

6. The hearing was conducted in person at Sydney on 11 November 2015.

7. 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

8. The Child Protection (Working with Children) Act 2012, NSW came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance.

9. The Act was amended by legislation which came into force on 2 November 2015. However BXL’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.

10. 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.

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

12. 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.

13. 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.

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

15. It is my view that the meaning of “risk” is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that is, a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child.

16. 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.

17. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61] so that its purpose is not to punish BLP but to protect children against the risk of harm of the nature as set out by Young CJ in Commissioner for Children and Young People v V (supra) (see BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 at para 103-105).

The Evidence

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

1. Exhibit A1: The application to which is a statement titled “Attachment” and the Children’s Guardian Notice to Disqualified Person.

2. Exhibit A2: An undated submission signed by BXL addressed to The Office of the Children’s Guardian and NCAT.

3. Exhibit A3: An undated personal reference signed by a referee who in these Reasons will be called Mr R.

19. The respondent tendered into evidence without objection the following documents:

1. Exhibit R1: A bundle of documents tabbed 1 through to 10 and numbered page 1 through to page 391.

2. Exhibit R2: A bundle of documents tabbed 1 through to 6 and numbered page 1 through to page 142.

3. Exhibit R3: A bundle of documents tabbed 1 through to 6 and numbered page 1 through to page 99.

Consideration

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

20. The Police antecedents in respect of the disqualifying offences note that the victim of the offences was the stepdaughter of BXL (called Miss A in these Reasons) who at the time of the court hearing (2003) was 13 years old. The antecedents provide information to the following effect:

1. Between 1 September 2002 and 11 April 2003 when Miss A was asleep in her bed, BXL entered her bedroom, pushed her bra and top upwards and placed his hands on her breasts and squeezed her nipples with his fingers.

2. Shortly after the offence outlined above, BXL placed his hand down the front of Miss A’s underwear and ran his fingers through her pubic hair. He placed his palm and fingers on the outside of her vagina.

3. On the same evening as the incident outlined above, BXL went to Miss A’s bedroom and again pushed her top and bra upwards and grabbed her breasts and squeezed both her nipples with his fingers

4. Sometime between 1 September 2002 and 31 December 2002 when the Miss A and BXL were lying together on a bed, BXL pushed up Miss A’s top and bra and grabbed her breasts with is hands. He picked her up and carried her into her bedroom.

5. On 11 April 2003 BXL placed his hands on Miss A’s breasts and commented, “these are getting bigger”.

21. In respect of these offences, BXL was initially sentenced to 12 months imprisonment with 8 months non-parole period as well as being required to enter into a bond to be of good behaviour for two years.

22. He appealed against the sentences and on appeal for the first offence was required to enter a bond to a good behaviour bond for two years the conditions of which included supervision by the Probation and Parole Services and attendance at a sexual offenders program. For the second, third and fourth offences he was sentenced to imprisonment for 12 months which was suspended upon him entering into a bond. In respect of the fifth offence he was sentenced to 200 hours of community service.

23. In sentencing BXL, His Honour Judge Knight noted that he regards offences of this nature against children as “very heinous indeed”. However in judging these offences to be at the “bottom of the range for offences of this nature” His Honour noted that there were no inducements or threats made by BXL and nothing was said about keeping his behaviours secret. He also observed that there appeared to be no planning involved in the offences and that BXL “took advantage of the situation”.

24. Under cross examination BXL gave evidence to the following effect:

1. Prior to committing the offences he was aware that three of Miss A’s older sisters had been sexually assaulted by their father. As a result of those circumstances, his wife had been given a choice by her church to the effect that she should leave her then husband or leave her children and she had chosen to leave her husband.

2. Prior to him committing the offences, he and his wife had discussed the possibility that Miss A had also been sexually assaulted by her father.

3. He did not initiate counselling for Miss A regarding this possibility and did not report the assaults of the other daughters to police. He thought that his wife might have reported the matter to police in Western Australia, where those assaults would have taken place, but he was not certain.

25. BXL also agreed under cross-examination that Miss A had been sexually assaulted by two of her brothers. He said that he had suspected one of his stepsons of perpetrating these assaults from about 1999. He said that he had attempted to talk to Miss A about the possibility and also questioned the brother about his behaviour. He said that he did not seek advice about the situation from his church or from any other person.

26. In a “submission” handed up as evidence by BXL (exhibit A2) he states that at the time of the offence he was “consumed with internet pornography”. He states that he felt he needed to try to satisfy his sexual desires and that it would be too embarrassing to talk to his wife about it. He states that one night he was “caught” using pornography by his wife.

27. Under cross examinations BXL said that he did not cease using pornography after he was discovered by his wife to be doing so and that he used pornography over a period of approximately six months up to the time he reported his offences to police.

28. Under cross-examination BXL said that his use of pornography was the result of stress related to business and marital problems. He agreed that he had been accessing incest related pornographic material and said that he could not recall if the pornographic material included reference to people under the age of 18 years.

29. In a written account, headed “Relevant Background Facts” that forms part of the records of the Corrective Services Forensic Psychology Services Sex Offender Program, BXL notes that as his pornography habit grew, his “daughter became more and more attractive to me”. In a document headed “Feedback on Disclosure” BXL states that he “saw some of these incest sites and became curious to find out if my daughter would allow herself to be coerced into this lifestyle”.

30. A Treatment Summary and Risk Management Report dated 9 March 2006 prepared by Ms Katherine Sahm, a forensic psychologist with the Sex Offender Program of Corrective Services NSW and written after BXL had attended the sex offender program describes BXL as having deviant sexual fantasies about the victim to which he masturbated.

31. As noted in the judgement handed down at BXL’s appeal, the offences committed by BXL were at the lower end of the scale for offences of this nature. The Tribunal is of the view that whilst serious, the offences viewed objectively, are not the most serious of this type of offence. However the Tribunal is of the view that taking into account the specific circumstances of the offences, they are more serious than might otherwise be the case.

32. In particular the Tribunal is of the view that the offences are the more serious taking into account BXL’s suspicion that Miss A had been sexually assaulted by her father and her brothers and that despite this knowledge rather than exercising parental responsibility to protect Miss A, he masturbated to thoughts of her and accessed incest related pornography which he now says led to the offences.

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

33. The offences occurred in 2002 and 2003 some 12 to 13 years prior to the hearing.

34. During the hearing BXL initially asserted that despite the number of offences for which he was sentenced they had occurred during the one incident. He later said he thought there were two instances. The facts presented refer to an incident between September 2002 and April 2003 and to two other offences, one “shortly” after the first and another “shortly after the second”. The fourth and fifth offences as charged took place on different dates. Under cross-examination BXL agreed that the offences had taken place on three separate occasions.

35. In sentencing BXL on appeal, His Honour Judge Knight makes comments to the following effect about BXL’s behaviour after the offences:

1. BXL pleaded guilty to the offences thus saving Miss A from the requirement to give evidence.

2. BXL went to the police and confessed the offences.

3. In respect of the second offence, that is, when BXL placed his hand down the front of Miss A’s underwear and ran his fingers through her pubic hair and placed his palm and fingers on the outside of her vagina, Ms A had not referred to that incident in her statement.

4. His Honour also notes, however, that prior to BXL attending the police station, Miss A had made a complaint to her mother and steps had been taken to bring the matter to police notice. His Honour opines that BXL’s actions only “short-circuited” a process already commenced.

36. During the hearing under cross-examination BXL said that in April 2003 Miss A wrote a letter to her mother in which she disclosed BXL’s offending behaviour. BXL said he then approached a Bishop from his church and confessed his behaviour. He said that the Bishop was of the view that he should leave the house but left that decision to BXL and his wife. BXL said that his wife wanted him to remain in the home to “sort out” the situation and to “work through it”. However because he remained in the house, Miss A moved out from the house.

37. BXL said that once he attended the police station in May 2003 and reported his actions he was told that he should leave the house.

38. It was put to BXL under cross examination that in staying in the house after his offending behaviour had been revealed he was only thinking about himself and the effects of the disclosure upon him. He agreed with those propositions. He said that he was probably too self centred at the time and was worried about where he might live.

39. Notes made by the Corrective Services Forensic Psychology Services Sex Offender Program record that when BXL visited his Bishop the latter advised him to go to the police and that the Bishop did not report the behaviour to the police due to confidentiality. Under cross-examination BXL agreed that the Bishop had encouraged him to report his conduct to police.

40. Counsel for the respondent noted that Miss A had left the home after BXL’s offending behaviour had been revealed and lived with a friend. In response to a question from counsel, BXL said that he thought there was risk that having moved out of the home, Miss A might tell her friend about his behaviour.

41. Counsel for the respondent put to BXL that he went to the police and confessed because he knew it was inevitable that he would be found out. BXL denied that this was the case and said words to the effect that he confessed to police because he wanted to get what he had done behind him, that he could not, in good conscience not take that step and he would rather be judged in this world than by God.

42. On 12 December 2003 BXL was named as the defendant in an Apprehended Violence Order -Domestic (ADVO) the conditions of which included that he was not to enter premises in which Miss A was residing and also that he must not go within 100 metres of such premises except with the permission of Miss A’s mother to collect or return his children for the purposes of contact. During the hearing BXL was cross-examined regarding his actions whilst he was subject to the ADVO. During cross examination:

1. BXL agreed that during that time he had contact with Miss A on approximately three to four occasions when she visited his house with her mother.

2. Counsel for the respondent drew the attention of BXL to statements contained in a Family and Community Services assessment to the effect that he waited in a car outside the house to collect his children and that Miss A felt threatened by that practice. BXL said words to the effect that he did not consider the possibility that his behaviour could adversely affect Miss A and that he had relied on his wife to advise him on how he might behave.

43. Counsel for the respondent also questioned BXL about any treatment he sought regarding his behaviour prior to his sentence. In response he said words to the effect that:

1. He visited both the Bishop and the State President of his church for spiritual guidance and also visited his doctor and asked the latter if there was anything else he should do. He said that he could not recall what the doctor said. He said he could not afford any other treatment

44. During cross examination BXL was asked about steps he took as the step-father of the children to protect Miss A from further sexual abuse once a brother who had previously sexually assaulted her returned to the house. He said that he could not recall if one of the brothers who had perpetrated the assault was living in a caravan on the premises at that time, but that he was of the belief that the named son, who has attended a sex offender’s program, had been scared by his offence and attendance at the program. BLX said that he believes he would not have been concerned if that brother was living on the premises because he knew that he had been through a sex offender program.

45. Under cross examination when asked how he broached the subject of his offending with Miss A, BXL said that in early 2005 he wrote a letter to Miss A and gave it to his wife to deliver to Miss A.

46. The records of the NSW Department of Corrective Services Forensic Psychology Services Sex Offender Treatment Program indicate that around November 2005 BXL was called into the office of the Bishop of his church for a meeting with the Bishop, Miss A and Miss A’s mother. The Bishop asked Miss A if she forgave BXL and if it was ‘OK’ for him to return to the family home. Miss A is reported to have said yes to these questions. The Sex Offender Program notes are to the effect that therapists discussed with BXL whether this was in keeping with the spirit of ADVO that was in place and also questioned whether, given the circumstances of the meeting, Miss A was placed in a situation where she was not free to make a decision because her mother, step father and the Bishop were in the room. The notes are to the effect that BXL was defensive and remained self-focussed during this discussion. Under cross-examination BXL made comments to the effect that:

1. The meeting was initiated by the Bishop, not by him. He was asked to attend and responded to the Bishop’s invitation.

2. He believes that Miss A was free to make her own decision at time.

47. Under further cross examination BXL said that under the rules of his Church, fathers are to preside over the family whilst mothers are to “stand by their sides” to help.

The age of the person at the time the offences or matters occurred, the age of the victim of the offences and any matters relating to the vulnerability of the victim, the difference in age between the victim and the person and the relationship between the victim and the person, whether the person knew, or could reasonably have known, that the victim was a child and the person’s present age,

48. BXL was 35 years old at the time offences and Miss A was 13 years old. She was 22 years younger than BXL. BXL knew that Miss A was a child. BXL is now 47 years old.

49. Miss A was the stepdaughter of BXL and the Tribunal is satisfied that she was a vulnerable person because of that relationship. The Tribunal is also of the view that Miss A was the more vulnerable because she was the victim of sexual assaults by her brothers and possibly by her natural father. On his evidence BXL suspected that these assaults had occurred prior to him committing his offences.

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

50. BXL had a number of relatively minor drug possession and motor vehicle offences predating the index offences. He was also charged with common assault of his stepson in 2000. He was not convicted of that offence. The charge arose in conjunction with a charge or driving in a manner dangerous and negligent driving and involved a verbal altercation between BXL and group of youths, including his stepsons and his subsequent driving of his vehicle in an dangerous manner in the vicinity of the young people. BXL was fined $100 in relation to the negligent driving charge.

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

51. As noted above in the section of these Reasons dealing with the seriousness of the offence, the victim of the offences was the stepdaughter of BXL. In addition to their inherent potential for harm the offences represent a breach of trust and any repetition in similar circumstances is likely to impact heavily on a child due both to the inherent harm of offences of this type and the breach of trust caused by the circumstances.

52. A Psychological Risk Management Assessment dated 16 December 2003 prepared by Mr Graham Rendell, a psychologist with the Forensic Psychological Services Sex Offender Program of Corrective Services NSW provides information and opinion including that during the assessment interview BXL demonstrated an adequate sense of responsibility and adequate victim empathy. As a result of that assessment it was recommended that he undergo the Low Intensity Sex Offender Treatment Program conducted by the Corrective Services NSW Forensic Psychological Services. It was also recommended that as at that time he had not completed a sex offender program, any contact with persons under the age of 16 should be supervised by a person who was aware of his offending behaviour and of the risks of sexual recidivism

53. A Treatment Summary and Risk Management Report dated 9 March 2006 prepared by Ms Katherine Sahm, a forensic psychologist with the Sex Offender Program of Corrective Services NSW and written after BXL had attended the sex offender program provides information and opinion to the following effect:

1. On the STATIC99 actuarial risk assessment instrument designed to predict the risk of sexual recidivism, BXL scored 0. This places him in the low risk category of sexual offenders. Offenders in that category sexually reoffend at the rate of 5% over five years, 11% over 10 years and 13% over 15 years. The rate for any violent recidivism (including sexual) for those individuals is 6% over 5 years, 12% over 10 years and 15% over 15 years. BXL presented as more likely to offend sexually rather than for violence.

2. In terms of dynamic risk factors related to BXL’s specific circumstances, the following information and opinion is provided:

1. BXL’s lifestyle changed after his marriage as he ceased involvement in sporting activities. His expectations and sense of authority in relation to being stepfather were challenged. He believed that his stepchildren did not respect him and his response was to become angry and to withdraw from his wife and to become isolated from social and church events. His self-esteem decreased and he engaged in secretive and isolative activities as a way of coping.

2. BXL had a history of not addressing negative feelings and became increasingly aggressive and controlling in his behaviour with his children. These issues were addressed during the sex offender program.

3. A significant factor in BXL’s offending was the fact that his victim was present in the house and there was no need for exhaustive planning for the offences.

4. BXL’s use of pornography as means of sexual coping appeared to be a consequence of a number of factors including replacing the rewards of high profile sports and as a way of managing negative emotions as well as an underlying belief that he had right to exert power. His deviant fantasies progressed to having deviant sexual fantasies about the victim to which he masturbated.

5. The risk factors for reoffending include BXL seeking to escape and isolate himself and having negative feelings, using pornography, masturbating and engaging in deviant sexual fantasies and beginning to plan an offence and spending time with a potential victim.

6. Based on the assessment Ms Sahm opines that BXL is in the low range for sexual offending so long as he maintains his current level of social functioning and maintains his emotions and self-esteem. In reaching that conclusion Ms Sahm notes that the family had reconciled and that the victim and BXL had received counselling and were being monitored by the church. She recommended that BXL re-establish his involvement in sport.

54. During the hearing BXL said that he has not taken up any sport and his work allows no extra time for sport. He said that he is involved in his children’s sport and in church activities.

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

55. In an attachment to his application BXL states that:

1. In the 12 years since his offence he has “become a new person” compared to when he committed the offences.

2. For three years after the court proceedings he was not able to serve in his church. He was on the Child Protection Register for 8 years and was told by a police officer that once he was no longer on the register he would be able to teach children at church. He was then placed on list of people who were able to work with children and did so for 12 months prior to the decision of the Children’s Guardian.

56. In BXL’s submission admitted into evidence (Exhibit A2) he makes statements to the following effect:

1. The sex offender program helped him realise what a despicable person he had been and made him sure that he would never be that person again. He has since read through the material from that program and is pleased that he is true to all that he wanted to be back then.

2. He no longer has any thoughts of offending.

3. In October 2011 BDL’s name was removed from the Child Protection Register and he thought that he could work with children. In 2014 he worked as a teacher of 10 and 11 year old children and was disappointed when he was unable to do so because the working with children check clearance rules.

4. He has an “amicable relationship” with the victim of his offence and she seeks his advice and help. She has six children who love him and his wife.

5. He has the support of his wife and he has a much better relationship with his son who was the object of some his previous anger.

6. His family has a “great bond of love and unity”

7. From the time he handed himself into police he had promised that he would become the “man that I knew God wanted me to he “ and he will never allow his thoughts to be “anywhere near where I was when I offended”

57. BXL provided the Tribunal with an undated personal reference in which the referee states that he has known BXL for 18 years and that he knew that the reference would be used “in relation to a sexual assault offence before the Court”. He states that he has observed BXL to be an “industrious worker, a loving husband and father, with the well being of his family in view at all times” and that he has “no hesitation whatsoever in singing the praises of (BXL) for his work ethic, family relations and as a friend. In the time I have known him his standards have been beyond reproach”.

58. In a letter dated 18 July 2015 to the Children’s Guardian in response to request for information, BXL states that he is employed as a storeman and has been in that employment since 2015. He was previously employed from 2006 to 2015 by a courier company. An email dated 24 July 2015 from that employer includes comments to the effect that no complaints had been received about BXL, he was “reliable” and “conducted himself in a “professional and courteous manner”.

Any other matters that the Children’s Guardian considers necessary

59. During the hearing counsel for the respondent drew attention to the following matters referred to in records of the (then) Department of Community Services (DOCS):

1. On 26 June 2001 the DOCS Child Abuse Line received a telephone call to the effect that BXL’s stepson had said that he was physically abused by BXL over a two-year period and had left home to live with his sister due to the ongoing physical abuse. He also said that BXL had attempted to run over him with a motor vehicle and had thrown him against the wall of the family home and ripped an earring out of his ear.

2. The caller also said that the same stepchild had said that BXL was abusive and controlling to the mother and that he often hits the mother.

60. In relation to those matters, in his written submission provided to the hearing BXL denies ever hitting his wife. In relation to the claims made by his stepson he states that “of the things written in that report, half of them are not true”

61. Under cross examination BXL made statements to the following effect:

1. He recalls taking an earring out of his stepson’s ear, but denied pulling it from his ear. He does not recall throwing the stepson against the wall but did not deny that he could have doe so. He did remember another incident involving pulling that stepson off the bed. After that stepson had left home he and his wife tried to encourage him to return home and he had apologised the stepson for any hurt he had caused.

2. The stepson who made the complaints seemed to ‘push his buttons’.

3. He may have been “heavy handed” in disciplining the children and until they were aged six to seven years he would have disciplined them by smacking them on the leg or the “behind”, but had not “laid a finger” on a child for 12 years since he made up his mind that he would not do so.

4. He had discussed his parenting techniques with his wife and had accepted that he needed to change his approach and during the sex offender program there was an emphasis on the responsibility of parents to care for children.

62. The Corrective Services Forensic Psychology Sex Offender Program records make reference to BXL’s disciplinary practices with his children

1. The records refer to BXL stating that the behaviour of his children had improved but that he still “flicks” the boys “on the ears”.

2. Included in the program records is a document referring to the “pathway” to the offences which includes that BXL had been yelling at and smacking the children and had become unreasonable and demanding such that his wife became “scared” of him.

3. Under cross examination BXL agreed that despite his earlier oral evidence that he had not used physical discipline techniques for some 12 years, the references to ongoing use of those techniques at the time of the sex offender program are evidence that he was using those techniques more recently than he had asserted.

63. Counsel for the respondent made oral and written submissions. In consideration of the fact that BXL was self-represented, counsel for the respondent agreed to make her oral submissions prior to those of BXL. In her oral and written submissions counsel for the respondent makes submissions to the following effect:

1. The program BXL attended in 2005 might have produced long term positive changes however the absence of a current assessment of the level of risk posed by BXL makes it impossible to assess whether he is successfully managing the risk factors that might cause him to engage in inappropriate conduct with a child or young person. If those behaviours were to reoccur there would be a significant deleterious effect on a child or young person particularly given the breach of trust involved in his behaviour and its impact on the family.

2. BXL did not make all relevant disclosures to the sex offender program. Under cross examination during the hearing he was not able to say whether he raised the issue of Miss A’s former abuse by her brothers and possibly by her father and nor was he sure if he disclosed the offence in 2000 and his behaviour in respect of his stepson. Hence the treating team were not able to address his violent and aggressive behaviours.

3. BXL has not followed the recommendations of the sex offender psychologist regarding becoming involved in sports and has not provided evidence of ongoing support from the Church. His evidence of support in the community is limited and the one character reference he has provided does not indicated that its author is aware of the details of the offences committed by BXL. The description of BXL contained in that reference as being a “loving husband and father” is at odds with the evidence heard by the Tribunal including that one stepson had moved out of home alleging physical violence and that BXL’s wife had become frightened about his approach to family discipline.

4. The applicant relies on his current good relationships with his wife and the victim of his offence but has not adduced evidence from either.

5. BXL has also relied on the fact that he has completed the sex offender treatment program which had a significant effect on him. However he has provided no positive evidence to show how he has changed.

6. The applicant has provided little evidence about his life since completing the sex offender program in 2006.

7. The applicant has also relied on the fact that he confessed to the offences. However by the time he went to police, the offences had been revealed by Miss A and it was only a mater of time until some action would have been taken. In any case his confession was at the suggestion of his Bishop. His approach to his confession appears to have minimised his culpability and inflated the moral goodness of his reporting the matter to the police.

8. In his submission BXL refers to his wife catching him out regarding watching pornography and appears to suggest that this is what brought the matter to light. However his evidence indicates that his wife found out about his use of pornography some six months before he reported his conduct to the police and in that time he offended at least one time and possibly twice.

9. Despite his suspicions that Miss A was being sexually assaulted by her brothers, BXL still used pornography related to incest and identified Miss A as a potential object of his sexual desires.

10. BXL engaged in offence minimisation regarding the index offences in that during the hearing he initially said that the offences related to the same occasion when in fact there were three occasions.

11. BXL has minimised his poor disciplinary practices in that during the hearing he initially said he had not used physical discipline in the last 12 years, but when confronted with evidence to the contrary he admitted that he had.

12. BXL also minimised his earlier offences. During the hearing he said that the incidents at the time he was charged with assaulting his stepson and driving in manner dangerous were the result of provocation by his stepson. He also said that at all times he was in control of the motor vehicle, despite being fined for negligent driving to which he pleaded guilty. This indicates that BXL does not accept the seriousness of his actions even when he has pleaded guilty.

13. BXL’s approach to his past behaviour as outlined in the submissions is such that despite the 2006 assessment that he was of low risk, the Tribunal could not be satisfied that if he was again faced with stress he would not reoffend.

14. BXL’s evidence points to a conclusion that he has relied on others to tell him how to act in respect of his offences and their aftermath. He accepted that it was reasonable for his daughter to move out of home after she revealed his offending rather than him moving out. He later moved out of home, but willingly participated in the meeting called by the Bishop at which his daughter accepted his apologies and acquiesced in him returning home despite the power imbalance inherent in that meeting and the inappropriateness of the meeting and of seeking the agreement of the victim who was then still only 15 years old.

15. BXL has stressed the role of his church in his life. However this is problematic because it appears that the approach of the church, including the acceptance that Miss A should move out of home after the offences and its organising of the inappropriate meeting referred to in the preceding paragraph is illustrative of the inadequacy of relying on that Church for guidance in such matters.

1. BXL failed to deal sensitively with Miss A and further victimised her by being present near the house whilst waiting to collect her siblings for visits. He also failed to ensure her protection when one of her brothers who had previously sexually assaulted her returned to live in a caravan at the premises.

Submissions in reply by BXL

64. BXL made oral submissions to the following effect:

1. His initial sentence of imprisonment and spending some time in a prison cell helped him to reform his behaviour. He understands that he has wronged some of the closest people in his life but since then he has tried to be as involved as possible with his children’s lives.

2. Prior to the disqualification from working with children he was working as a trainer with his children’s Rugby team and was getting satisfaction from that role.

3. He has used some physical methods of discipline with his children and accepts that he might have done better, but there were difficulties in being part of blended family of 8 children.

4. Whilst he might have done more to provide the Tribunal with letters from family, he has a good relationship with his family members and they know that he has changed. He had not realised that it would assist his case to obtain letters attesting to his relationships with his children and grandchildren.

5. His belief and faith led him to make the application from a working with children clearance and for the same reason he sought the current hearing. He believes that if given a chance he could make more of his life than he has done so far.

6. In the time since the offence he has complied with the law. Whilst he might have used some physical discipline techniques, in his view a “flick on the ear” is better than a slap.

7. Whilst he did not agree that he had minimised a number of issues from his past, it is true that there were some matters that he had not fully recalled. He has worked to put the matters behind him and has tried not to think about the detail of the matters.

8. Counsel for the respondent has suggested that there were things he should have done in the past but those suggestions are made with the benefit of hindsight and related to a long time ago. He has since learned a lot and is now more aware of issues relating to problems between children and adults.

9. The documents before the Tribunal indicate that extensive inquiries were made by the Children’s Guardian and the fact that there were no further issues raised is evidence that supports his application.

The Tribunal’s conclusions

65. Taking into account all of the evidence the Tribunal concluded:

1. BXL was assessed by Ms Sahm, a psychologist with Corrective Services Forensic Psychology Services Sex Offender Program as having a low risk of reoffending. This is a significant matter and the Tribunal takes it into account in assessing whether or not BXL poses a real and appreciable risk that is greater than the risk of any adult preying on a child. However, as set out in s.30(1) of the Child Protection (Working with Children Act) the Tribunal is required to take into account a range of factors when assessing whether BXL poses a real and appreciable risk.

2. Ms Sahm also identified risk patterns for future offending and noted that the low risk rating was contingent on BXL maintaining his social functioning, emotional stability and self esteem and recommended that he re-establish his involvement in sport. BXL indicated that he had not taken up sport, though he had become involved in his children’s sport.

3. The personal reference provided by BXL is undated and refers to a matter of “sexual assault before the Court” and does not acknowledge that the offence was committed against his stepdaughter or the circumstances of that offence. Even accepting that the reference refers to BXL’s character and family and social relationships since that time in the absence of further supportive evidence it is of limited probative value in establishing that BLX has maintained his social functioning, emotional stability and self esteem.

4. In addition to the reference referred to in the preceding paragraph the Tribunal notes that BXL’s previous employer has described him as reliable, professional and courteous. These descriptions suggest that in the workplace BXL has maintained a good level of professional and social conduct. However the work references are of limited value in assessing BXL’s likely behaviour in other contexts.

5. BXL bears the onus of proof in this matter and the Tribunal is not satisfied that BXL’s evidence has established on balance, that he has maintained personal, social and the family circumstances on which the low risk rating was said to be contingent.

6. Ms Sahm’s report notes that BXL’s family had reunited and he was being monitored by his Church. However BXL’s evidence to the Tribunal was to the effect that despite his wife’s knowledge of his use of pornography he continued to access incest-related pornographic material and to offend subsequent to his wife becoming aware of his use of pornography. The Tribunal also notes that according to BXL’s evidence, his church facilitated the meeting at which his victim agreed to him moving home under circumstances which would have made it difficult for her to do otherwise, taking into account her age and the attitude of the church to the role of fathers in the family. Taking these matters into account the Tribunal is not satisfied that the influence of BXL’s wife and church ameliorates the potential risk posed by BXL of reoffending against children.

7. Whilst the objective seriousness of the offences was at the lower end of the scale for offences of this nature, subjectively the offences are the more serious because of the breach of trust and breach of parental responsibility entailed under the circumstances in which BXL committed the offences knowing or suspecting that the victim had previously been sexually assaulted by family members.

8. The Tribunal notes that handwritten notes in the Sex Offender Program file (p.199 Exhibit R1) are to the effect that BXL said he “had heard that Miss A was molested from an early age from age 3” and that he and his wife had “caught” her brother molesting her. However under cross examination BXL could not recall whether he had raised this matter during the sex offender program and appears not to realise the significance of this matter in respect of the breach of trust and responsibility represented by his offences.

9. BXL’s behaviour following the offences does not ameliorate the seriousness resulting from the circumstances of the offences. Whilst he reported his offences to police it was under circumstances in which he thought that his offences were soon to be revealed.

10. BXL’s actions following the offences, including his decision to remain in the home, whilst the victim moved out and his subsequent actions including participation in the meeting at which his victim accepted his apology indicate that he lacked insight into the harm he had caused by his actions.

11. His evidence during the hearing that he believes that Miss A was in a position to freely accept his apology at the meeting he attended, even whilst acknowledging that under the rules of his church the father is the head of the family, indicates that he continues to lack insight into the effects that his offences are likely to have had on Miss A.

12. The nature of the offences and the circumstances under which they were committed are such that a repetition of offences of this nature would have a significantly harmful effect on a victim.

13. The offences were 12 to 13 years ago and BXL has not reoffended since then. However as indicated in Ms Sahm’s report some 13% of offenders with the risk rating achieved by BXL reoffend over a 15 year period. BXL’s age of 47 years is not such that it reduces the risk of further sexual reoffending.

66. Taking all of these matters into account and whilst the Tribunal accepts that BXL wishes to play an active role in the lives of children and his church, the Tribunal has concluded that the applicant has not discharged his onus of proving, on the balance of probabilities, that he does not pose a real and appreciable risk to children that is greater than the risk of any adult preying a child.

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

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

Registrar

Decision last updated: 23 February 2016