CG v Commission for Children & Young People

[2002] NSWADT 286

CITATION:	CG -v- Commission for Children & Young People [2002] NSWADT 286
DIVISION:	Community Services Division
PARTIES:	APPLICANT CG RESPONDENT Commission for Children & Young People
FILE NUMBER:	024030
HEARING DATES:	13/06/2002, 08/07/2002, 09/07/2002
SUBMISSIONS CLOSED:	07/09/2002
DATE OF DECISION:	12/04/2002
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:	M v M (1988) 166 CLR 69 Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101 Briginshaw v Briginshaw (1938) 60 CLR 336 Reynolds v Reynolds (1973) 47 ALJR 499 McKee v McKee [1951] AC 352
REPRESENTATION:	N Dawson, barrister RESPONDENT I Bourke, barrister
ORDERS:	1. The Child Protection (Prohibited Employment) Act 1998 does not apply to CG in respect to the offence of Indecent Assault Female for which he was convicted on 23 March 1973; 2. The Tribunal shall notify the Commissioner of Police of the terms of this order.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to 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.

1 The applicant is a “prohibited person” as defined by s 5 of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”). This Act makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment. The applicant seeks a declaration under s 9(1) of that Act which, if granted would mean that he would not be prohibited from working in child-related employment: s 5(2) of the Child Protection Act.

2 In 1973 the applicant was convicted of the offence of Indecent Assault Female. This offence constitutes a “serious sex offence” as defined by the Child Protection Act.

3 The applicant seeks an order without conditions under s 9(1) of the Child Protection Act. The respondent opposes this application.

4 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (“Tribunal Act”) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that may identify the applicant or anyone who gave evidence or was referred to in the proceedings (other than the experts). The applicant is referred to in these reasons by the pseudonym, “CG”, his former wife as “Mrs A”, and the children of the marriage as Child 1 and Child 2. The official copy of the orders provided to the parties will include the name of the applicant.

Background

5 The applicant is in his early 40’s. In May 2002 he completed his training to become a registered nurse. The Tribunal is advised that unless the declaration, which is the subject of these proceedings, is granted his application for registration will not be accepted by the NSW Nurses Registration Board. He will thus be unable to work as enrolled nurse in NSW.

6 The offence of Indecent Assault Female (“the index offence”), which renders the applicant a “prohibited person”, was committed in 1973 when he was 15 years of age. According to the applicant, the “victim” was his girlfriend. They had been sexually intimate, but did not have intercourse. The act was entirely consensual and no violence was involved.

7 The applicant married in 1982 and separated from his wife in 1986. They divorced in 1992. He has not remarried. There are two teenage daughters of that marriage, who were aged two and four years at the time of their parents’ separation. They are now 16 and 18 years of age.

8 The applicant has had minimal contact with his daughters since he separated from his wife. In 1992 the Family Court made orders granting him supervised access to his children. These visits ended in 1994, according to the applicant, at the election of his daughters. Since that time, the applicant has had no contact with his children bar a short meeting at his mother’s funeral a few years ago.

9 In November 1987 Mrs A notified the (then) Department of Family and Community Services (“FACS”) that her former husband had sexually abused his children. These allegations were investigated and the matter was referred to the police. No charges were laid. These allegations were central to the Family Court proceedings.

Relevant legislation

10 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under section 9 declaring that the Act is not to apply to that person. Section 9(1) provides that on the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence. Section 9(2) defines a relevant tribunal to include the Administrative Decisions Tribunal. Orders made under s 9 may be made subject to conditions: s 9(9).

11 If the tribunal refuses to make an order under s 9, the prohibited person is not entitled to make an application for an order under this section before 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal: s 9(8).

12 Section 9(4) provides that the tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account in deciding whether or not to make an order under s 9:

(a) the seriousness of the offences with respect to which the person is a prohibited person,
(a1) the period of time since those offences were committed,
(b) the age of the person at the time those offences were committed,
(c) the age of each victim of the offences at the time they were committed,
(d) the difference in age between the prohibited person and each such victim,
(d1) the prohibited person's present age,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.

13 Section 9(4) of the Child Protection Act requires that the Tribunal not make an order under s 9 unless it considers that the applicant does not pose a risk to the safety of children. The onus lies with the applicant to show, on the Briginshaw standard, that he is not a risk to children.

14 Counsel for the respondent, Mr Bourke, submits that unless the applicant can establish to the requisite standard that he represents no risk to the safety of children then it is not open to the Tribunal to make an unconditional order under s 9(1). Mr Bourke contends that the legislation is prefaced on the presumption that a “prohibited person” is a risk to children and it is for the applicant to satisfy the Tribunal of the positive fact that he is not a risk.

15 If the Tribunal were unable to make any conclusive findings about the allegations of sex abuse made by the applicant’s former wife, Mr Bourke argues, that the Tribunal should adopt the approach taken by the High Court in M v M (1988) 166 CLR 69. Counsel for the applicant, Mr Dawson, did not share Mr Bourke’s enthusiasm for adopting that approach arguing that M v M can be applicable only where the Tribunal is satisfied of the fact that some abuse had occurred. On the evidence before the Tribunal, Mr Dawson asserts, this conclusion could not reasonably be drawn.

16 The meaning of the word “risk” in s 9(4) was recently considered by the Supreme Court in Commission for Children and Young People v V [2002] NSWSC 949. In that decision Young CJ considered the decision of R v Commission for Children and Young People [2002] NSWIR Comm 101 in which Haylen J considered in some detail the proper construction of s 9(4). Many of submissions put in this case about that section were substantially the same as those examined in these two decisions.

17 Haylen J rejected the contention that the Child Protection Act operates on the rebuttable presumption that the prohibited person is a risk. He commented [at 97] that “there is no presumption of risk but rather the immediate imposition of a prohibition supported by penalties”. He went on to say at [104] that s 9(4) was focused on “not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.” Young CJ adopted this analysis. (See [38] and [40]).

18 His Honour held that the meaning of “risk” in s 9(4) was whether in “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.” [42]. That test is now binding on the Tribunal.

19 His Honour took the view [at 46] that the condition power under s 9(9) should be read so that the imposition of relevant conditions may make a person “who would otherwise pose some risk to children into a person who does pose a real unacceptable risk to children”.

20 I turn now to consider the respondent’s submissions in relation to M v M. That case arose out of the custody jurisdiction of the Family Court. The primary judge had awarded custody to the mother of a daughter and refused the father access to his daughter. While although he could not be satisfied that the mother’s allegations that the father had sexually abused his daughter were proven, he had sufficient ‘lingering doubts’ to make it imprudent to grant the father any access when regard was had to the paramount interests of the child. The father appealed to the Full Court of the Family Court. It dismissed the appeal by majority of two to one. The majority agreed with the approach adopted by the primary judge.

21 Chief Justice Nicholson dissented. While accepting that positive proof of the allegation was not essential, his Honour considered that a higher standard of satisfaction was required to deny a father access than that adopted by the primary judge. Nicholson CJ considered that '[t]here must be a real or substantial risk of such abuse occurring as a matter of practical reality.'

22 The father appealed to the High Court. In its joint judgment the Court dismissed the appeal. The Court said at 75-76:

In proceedings under Part VII of the [Family Law] Act in relation to a child, the court is enjoined to 'regard the welfare of the child as the paramount consideration' (s 60D). ... The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
...[T]he resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were not more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance probabilities.
In considering the allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof ...".

23 The Court referred to the well-known dicta of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. In that case Dixon J said:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.'

24 The Court continued:

'[These] remarks have direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw , that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. ...
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of the risk.

25 The Court then discussed various ways in which the courts have attempted to describe the magnitude of risk. It concluded:

To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

26 The Court noted that the primary judge had used the expression 'lingering doubts' but that, viewing the reasons as a whole, he was not satisfied the allegation had been made out to the civil standard, as expressed in Briginshaw. The Court stated that the primary judge 'obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.' See also Reynolds v Reynolds (1973) 47 ALJR 499; McKee v McKee [1951] AC 352 at 364-365.

27 The task before me is to determine whether, taking into account all factors listed in s 9(5), together with any other relevant matters, the applicant presents a real and material risk to children. It is apparent that in this case the applicant’s former wife’s allegations of child abuse are relevant to that determination.

28 The test in M v M cannot, of course, replace the statutory test. However, it provides useful guidance in interpreting the statute as it emphasises that there is a distinction between “an unacceptable risk” to a child and a positive finding (on the balance of probabilities) that a child has been sexually abused. Under the Family Law Act, a court charged with making determinations and orders is obliged to make the interests of any children concerned the paramount factor in its considerations.

29 It was clearly Parliament’s intention in enacting the Child Protection Act to make the protection of children the paramount consideration when there was a conflict between the public interest and the private concerns of persons convicted of index offences.

30 In that context, the High Court’s analysis of the concepts of risk and unacceptable risk to children are relevant to the present proceedings.

The Index offence (s 9(a), s 9(a)(1), s 9(b), s 9(c), s 9(d))

31 This offence occurred when the applicant was aged 15, one year older than his “victim.” I accept his evidence that the victim was his girlfriend, they had been sexually intimate, the act was entirely consensual and no violence was involved.

32 Such behaviour today would be unlikely to lead to a conviction. Given the close age of the parties, the youth of the applicant at the time and the nature of the conduct, which led to the conviction. The offence, considered by itself, does not indicate a propensity to sexually abuse or otherwise act in an inappropriate way towards children.

Applicant’s Age (s 9(5)(d1)

33 The applicant is now 44 years of age.

The seriousness of the applicant’s total criminal record (s 9(5)(e)

34 The applicant has a lengthy criminal record commencing in 1970 when he was 12 years old. Between 1970 and 1983 the applicant was regularly in trouble with the law. In 1970 the applicant was convicted of assault with intent to rob. While attempting to burgle a house, he and a friend, apparently of similar age, attacked an elderly woman, forced her to the floor, punched her, stuffed a plastic bag in her mouth and tied a phone cord around her neck.

35 In respect of the other offences, the applicant provided the Tribunal with what appears to be a plausible explanation. If accepted, the explanation would lend support to the submission that his criminal record represents no grounds for concern. If the applicant’s unsupported account of these incidents is accepted, it would show that he has been repeatedly, over an extended period, been the victim of police injustice. While I find it difficult to accept that he was faultless in relation to the matters recorded against him, the objective evidence is that he has not been convicted of any serious criminal offences for many years.

36 Apart from the first two matters as a 12-year old boy, and the indecent assault, for which he was convicted as a 15-year old, the only matter of particular moment on his record is an assault in 1979 for which he was fined $200. While his record is lengthy it is noteworthy that between 1983 and 2002 he has been convicted only of traffic matters. Even in relation to traffic matters, there is nothing recorded since 1992. This indicates that the applicant, like many youths and young men, was something of a “rebel without a cause”, but as he matured he settled down.

37 Relevantly, bar the index offence, none of the applicant’s convictions involved children. The only offence that could be characterised as sexual in nature is the offence of alarm and affront for which the applicant was convicted in 1982. The applicant’s evidence, corroborated by his former wife, was that he and a group of friends had been nude bathing in an isolated area. Of itself, this conviction does not indicate a tendency to sexually abuse children.

38 In my opinion, the criminal history, but for the index offence, is all but irrelevant except in the negative sense of showing that Mr M does not have, if the record is any indication, have a propensity to harm children.

Other matters as the tribunal considers relevant (s 9(5)(f)).
Sex abuse allegations

39 The tribunal has before it voluminous material that had been filed throughout the period 1987-1992 in the Family Court proceedings between the applicant and his former wife (“the original proceedings”). Both parties gave oral and written evidence in these proceedings about the allegations of sex abuse raised by Mrs A in the Family Court. In short, Mrs A stood by her original allegations and the applicant continued to deny them.

40 In the course of the original proceedings, Mrs A alleged, among other things, that her husband kissed his children on the open mouth; her eldest daughter, Child 1, told her that “ Daddy lets me touch his penis”; after separation and without her knowledge or consent he had slept unclothed with them on occasion. In addition, two serious allegations were made that were to become the focus of the Family Court proceedings. The first of these allegations (“the bath incident”) is described by Mrs A, in an affidavit filed in August 1988 as follows. In 1987 she found her husband (uninvited) in the bath with the girls after their return from an access visit. She ordered him to get out, to which he replied, “watch this”. According to Mrs A, both children then placed their hands on his penis and Child 1 put her mouth over the top. Mrs A claimed that the applicant then said, “It stands up and makes babies”. Later that evening, she claimed, she found her husband naked in Child 1’s bed without her approval.

41 The second allegation, namely “the doll’s head incident”, is broadly described in the decision of the presiding judge in the Family Court proceedings, Perdy J, as follows. In 1985 while the parties were still living together, the applicant was bathing with Child 1, and fitted a doll’s head over his penis and squeezed it, causing water to came out of its mouth.

42 Mrs A swore three affidavits in the Family Court proceedings. In the first, filed in 1987, she detailed a number of allegations which included: first, that Child 1 told her, “Daddy lets me touch his dick”; second, that in 1981 the applicant hit her, breaking her nose; third, that in 1983 he threatened to “get her” if she testified in court that he had assaulted her; fourth, that he frequently punched and pushed her during arguments causing bruising to her arms legs and arms; fifth, that in 1986 he picked up Child 1 and threw her across the room. Reference is also made in that affidavit to the children’s unkempt and dirty state on their return following a two-week visit with their father in July 1987.That affidavit makes no mention of the bathing incident, which, as is apparent from evidence later before the Family Court, was said to have occurred immediately after their return from that visit.

43 It is not entirely clear from the material before me when the doll’s head incident was first raised in the Family Court proceedings. It is not referred to in any of Mrs A’s affidavits filed in 1987,1988 and 1992. Nor is it mentioned in the report of Amanda Courtney, sexual assault counsellor dated 13 July 1988 (to which I shall return). It is broadly referred to in the report of the Family Court counsellor, prepared in October 1992. However, it is to be observed that in that report the doll’s head allegation appears to have become confused with the other bathing incident.

44 A photograph said to relate to the doll’s head incident was tendered in the original proceedings was a photograph said to relate to the doll’s head incident. The applicant testified in these proceedings that his former wife took the photograph with his full knowledge and consent. He recalled that as the head of one of Child 1’s dolls floated over his penis, his wife joked, “It looks like a dickhead.” According to the applicant, both considered this amusing, so much so that his wife took a photo. Mrs A denied that at the time she saw the incident as a “bit of a joke”. She said she took the photo “…because otherwise no one would believe me.” [I interpolate that Justice Perdy observed that while the photograph was not entirely clear “the father’s penis does not appear to be erect and …the father does not appear to have made the slightest effort to have concealed the whole matter”.] In evidence before this Tribunal, Mrs A said that after that incident the children continued to bathe with their father.

45 In 1987 Mrs A notified FACS that Child 1 had reported inappropriate conduct of a sexual nature by her father. The matter was referred to police. No charges were laid. Mrs A was referred to the local area health service for counselling. In November of that year the girls were referred to paediatrician, Dr Erikson for examination.

46 According to Mrs A, her daughters received counselling from Ms Courtney from 1987 until the conclusion of the Family Court proceedings in 1992. Mrs A said she also received support and counselling from Ms Courtney so she could assist her daughters. In cross-examination, she denied that she notified FACS of the sexual assault allegations in an attempt to bolster her efforts to persuade the Family Court to deny access to her estranged husband. In cross-examination, she conceded that she saw continued contact between her children and her husband (after separation) as an unnecessary source of friction.

47 According to Mrs A, since the conclusion of the Family Court proceedings she has not sought any further counselling assistance for her daughters nor has she discussed the abuse with them.

48 She said that for some of the time when she lived with her husband they lived in isolated rural area and lived an alternative lifestyle. It was not uncommon for the family to go around unclothed. She agreed that during that time her daughter would sometimes touch her husband on the penis and she saw nothing inappropriate about that.

Medical evidence

49 In an affidavit filed in the Family Court in September 1998, paediatrician, John Erickson, deposed that in November 1987 he had examined Child 1, then aged four and a half, and found that her hymen showed a healed scar. In his opinion, such scarring was consistent with penetration by a finger. In his view it is unlikely that a child in this age group would place anything in their vagina.

50 He deposed that he also examined Child 2 (then aged two and a half) and found no evidence of scarring.

51 Dr Erickson also gave evidence in these proceedings about his 1987 report. He had been examining children at risk for about three years. He agreed that before the examination he had been told that Mrs A had alleged that their natural father had sexually abused the children.

52 Dr Erickson said he had been told that Child 1 had been seen to place a toothbrush in her vagina. In cross-examination he agreed that children of Child 1’s age often masturbate, however he said, that as a general rule this does not cause girls to injure their hymen. His opinion was that it was highly unlikely that Child 1 caused the injury herself as that type of injury would have been very painful.

53 In his supplementary report, Dr Lennings observed “contrary to the observations of Dr Erickson [that it is highly unlikely that a child of Child 1’s age would insert anything into their vagina] there has been frequent mention of children inserting objects in their vagina, even at a young age.”

Courtney Report

54 Despite objections, the report of Amanda Courtney was admitted into evidence. That report purports to set out the results of an interview conducted by Ms Courtney with Child 1 and Child 2 in about January 1988. It was apparently written some five months later. It does not indicate whether contemporaneous notes were made of that interview. It is to be observed that Ms Courtney occupied the dual role of investigator of the allegations and counsellor (to both the girls and Mrs A).

55 The report includes a number of statements said to have been made by Child 1: that she bathed with her Dad; that he talked rude and said “dickie”; that he gave her sloppy kisses; that he weed in the bath. When asked does anyone touch her on the vagina she replied, “ I don’t know” and later (in answer to a question) said that if someone did touch her there it would make her feel “yukky”. These statements are at best equivocal and are open to any number of interpretations (as is often the case with statements made by children).

56 In the absence of further evidence about the conduct of the interview, the circumstances surrounding the preparation of the report and the methodology employed by Ms Courtney in questioning the children it provides little if any assistance, in my view, in establishing the truth of Mrs A’s allegations.

Findings and Conclusions: Abuse Allegations

57 Mr Dawson submits that the Tribunal can be reasonably satisfied on the evidence before it that the sex assault allegations are groundless. He urged the Tribunal to take account of the fact that they were made in the course of protracted and acrimonious Family Court proceedings and, as conceded by Mrs A, it was her view at that time, that the children would be damaged by contact with their natural father. It is simply implausible, argues Mr Dawson, that if the bath and the doll’s head incident had in fact occurred, that Mrs A would have failed to mention them at the first available opportunity. Mr Dawson further argues that it makes no sense that Mrs A continued to live with, and more importantly, allow her children to bathe with the applicant, had the doll’s head incident in fact occurred. Her evidence, he asserts, is simply unreliable.

58 Mr Bourke, counsel for the respondent, submits that it is open to the Tribunal on the material before it to find that the bathing and the doll’s head incidents were true or substantially true. The evidence of Dr Erickson, asserts Mr Bourke, represents a piece of independent evidence broadly consistent with Mrs A’s allegations.

59 Mr Bourke submits that if the Tribunal were unable to make any positive findings about these allegations the test in M v M should be employed namely: is there a risk of sexual abuse occurring if the applicant were to work with children and if so what is the magnitude of that risk.

60 As the High Court observed in M v M (at 77), an allegation that a parent has sexually abused a child is often easy to make but difficult to refute. Conversely, where such abuse had taken place it is often difficult to establish its truth.

61 As both parties acknowledge, the task confronting the Tribunal in determining the truth of Mrs A’s allegations is extremely difficult. Over fifteen years have now passed since these incidents are said to have occurred. The only adult witnesses are the applicant and his former wife, neither of whom could be considered independent. The only reliable “independent” evidence is that given by Dr Erickson that Child 1 had sustained an injury consistent with penetration. It does not help further in determining who or what caused that injury.

62 The decision of Justice Perdy provides some guidance. While I am not bound to accept His Honour’s findings, he had the benefit of hearing a more recent account of each party’s account of the contested incidents. While His Honour was dismissive of the doll’s head incident, he was less equivocal about the later bath incident. He considered the applicant’s conduct in jumping into a bath with his daughters, at the home of his estranged wife, without invitation to be “strikingly inappropriate.” However, in regard to the substantive allegation, namely whether the applicant allowed the girls to place their hands and mouth over his erect penis, no definite finding was made.

63 While I did not have before me the transcript of the original proceedings, the evidence given in these proceedings by Mrs A and the applicant does not appear to be materially different from the respective accounts given in the Family Court. It is relevant that no new independent evidence has been presented.

64 It is difficult to make any conclusive determination about Child 1’s alleged report that the applicant let her touch his penis. It may be that the child was referring to the innocent practice (referred to by applicant and corroborated by his former wife) of touching her father’s penis while he (and other members of the family) were going about their daily routines without clothing. It may be that the child was in fact referring to entirely inappropriate conduct, as Mrs A alleged. Or, alternatively, the child may have never made that report.

65 In respect of the bath incident, Mrs A’s allegations appear to me to be inherently implausible. It is simply inconceivable that if her former husband acted in the manner as alleged, that she would have permitted him to stay overnight, apparently without protest, and then wait a further four days before taking steps to have him removed. But more relevantly, as noted by Perdy J, it is simply “extraordinary” that the substance of that allegation was not mentioned in the affidavit filed some six months after that incident when matters of lesser significance such as the appearance of the children were detailed. Similarly, it seems highly unlikely that Mrs A would not have mentioned the doll’s head incident in any of the affidavits filed in the Family Court. Finally, it seems highly unlikely that a father intent on sexually abusing his child, would demonstrate his practices, or one of them, to his wife as alleged by the applicant’s wife.

66 Against this, regard must be given to the medical evidence and Justice Perdy’s assessment. While it is not possible to say from Dr Erickson’s evidence who caused Child 1’s injury, it is a disturbing piece of evidence because it is consistent with the child having been sexually assaulted. While there may be a range of views about whether girls of Child 1’s age commonly place objects in their vagina, it seems more probable than not that a child would not voluntarily cause herself an injury of the type sustained by Child 1. It is apparent from His Honour’s judgement that he had significant misgivings about the sex abuse allegations. A fair reading of the judgement indicates that he was left with some “some lingering doubts” that the applicant may have presented some risk to his children and concluded that the level of risk was not unacceptable. It is relevant that only supervised access was granted.

67 Having carefully considered all the material before me I make no positive finding about any of Mrs A’s allegations. I am, however, left with an uneasy suspicion that something of an improper nature may have occurred. I will return to this point.

Allegations of Domestic Violence

68 Mrs A contends that her husband was often violent towards her. While broadly denied, it is common ground that the marriage was punctuated by heated and explosive arguments. Mrs A also alleged that in about 1986 the applicant threw Child 1 against a wall. This is strongly denied.

69 Mrs A alleged that in 1981 the applicant broke her nose in the course of an argument. The applicant does not dispute that he injured his wife but claims it was an accident, caused by a car door being slammed, and that she was in part responsible for that injury.

70 Mrs A further claims that in 1983 the applicant assaulted her in the street. According to Mrs A, before giving evidence in court about that assault, the applicant threatened her and as a consequence, she declined to give evidence against him. The charges were then dropped. The applicant disputes this and claims that his wife had initiated the attack and any injury she may have sustained was by way of self-defence. He denied threatening her. Rather, his version is that after reporting the assault Mrs A realised that her action had been foolish and advised the police accordingly. A police report made after this incident recorded that Mrs A had presented with a swollen dark red mark under her eye.

71 While in respect of the 1981 incident, it may be that the applicant did not deliberately set out to break (or injure) his wife’s nose, the fact is he did. At best, he acted recklessly or was indifferent to her safety and his actions indicate that he lost control. In respect of the 1983 allegation, while both parties may have (again) been involved in a heated argument, the applicant’s claim that his former wife’s facial injury was caused in “self defence” seems implausible, as does his claim that his she had a “change in heart” and decided to drop the charges. I am satisfied on balance that the applicant did assault his wife in 1981 and again in 1983 and threatened her against giving evidence against him.

72 I make no positive findings as to whether, as alleged, the applicant threw his daughter across the room.

Psychological Evidence

73 The applicant was interviewed and assessed by psychologist, Dr Lennings, at the request of the respondent. A report prepared by Dr Lennings, dated 9 April 2002, and a supplementary report of 23 June 2002, were tendered. Dr Lennings set out in some detail the methodology that he used in his assessment namely actuarial, structured clinical and clinical assessment, and the data relied upon. Neither party challenged the method of assessment employed or the data employed to make that assessment.

74 The Static–99 test used by Dr Lennings as the basis of his actuarial assessment, attempts to predict sexual recidivism by weighting key “static” variables such as the offender’s age, past offending history and history, and factors surrounding the prior offence/s. Using this measure, Dr Lennings found that the applicant fell into the high risk category, out of three possible classifications: low, low-moderate or high. Employing clinical assessment, Dr Lennings concluded that the applicant is “a rather unconventional man with an oppositionist type of personality who has rather low self esteem and considerable self doubt. He presents as a man with considerable character flaws if not specific sexual deviance.” Structured clinical assessment placed the applicant in the low-moderate risk group.

75 While in Dr Lennings’ view there was no strong evidence of predatory sexual deviation “the possibility that [the applicant] has exhibitionist tendencies must be considered”. He stated, “It is not possible to make a clear statement as to whether the applicant does show elements of sexual deviancy, although such a diagnosis must be kept in mind.”

76 Dr Lennings concluded:

“On the whole [the applicant] does not present as a person likely to sexually abuse his future patients, or take sexual advantage of children. Although my assessment is not confident about whether mild exhibitionistic tendencies remain, it appears to me unlikely that any supervision program can be instituted to manage these in [the applicant’s] voluntary work with children. The question remains as to what harm [the applicant] could do if he were to indulge in exhibitionistic behaviour. In reality such harm, if it occurred, could be exposing to children to uncomfortable experiences, but not ones that they might initially identify as sexually aggressive, or even think to complain about. If the Tribunal considered that sufficient doubt remains about [the applicant] in this regard, then it would seem appropriate to require him to desist from this kind of work. I see no problem in his working within a structured hospital based environment with patients.”

77 The respondent sought clarification on a number of matters addressed in the first report, including the relative merits of actuarial and structured clinical assessment. Dr Lennings responded that under normal circumstances actuarial assessment (which categorised the applicant as high risk) was the most accurate predictor by a “very long margin.” However in his view, the assessment of low risk offenders cannot be seen as “usual circumstances”. Actuarial testing was developed, claims Dr Lennings, to assess the potential risk of prisoners who in the large had been convicted of severe sexually violent offences. The high score achieved by the applicant, is based (in part) on the index offence and the 1982 conviction for affront. Dr Lennings was of the view that Static-99’s weighting of the index offence may not be appropriate given the change in community values towards conduct of that nature over the past thirty years. The relatively trivial nature of the offence of nude bathing and urinating in public must as a matter of common sense be taken into account in an interpretation of the applicant’s high-risk score. He defended his decision to discount the actuarial assessment, a choice, in his view, with which “few experienced clinicians would disagree”.

Conduct of Applicant following separation

78 Since about 1990 the applicant has had a reasonably steady history of work and study. In the late 80’s he undertook some childcare training and after briefly working for one family as a nanny/housekeeper, worked for another family in a similar capacity for a period of five years. He took a break of about 18 months from that family and, returned to them on a part time basis for a further four years. Throughout the period 1989 to 1999 he worked as a volunteer for an organisation providing respite services to children with disabilities.

79 For the past five years, he has worked as a volunteer in various organisations providing services to children and pursued his studies to become a registered nurse.

Character references

80 A number of general character/ work references were tendered on behalf of the applicant. References were provided from the parents of the two families for which the applicant had worked as a nanny/ housekeeper. They establish that he was held in high regard by parents and children alike.

81 A reference from Dr B, who had employed the applicant as a nanny/ housekeeper throughout most of the 1990’s, was tendered. When Dr B first engaged the applicant in 1991, her children were aged four and six and a third was expected. Dr B speaks highly of the applicant’s work as a child carer for her family and says that he was sorely missed when he left in the mid 1990’s and she had urged him to return (which he did).

82 The only referee to acknowledge the applicant’s criminal history and /or the allegations made in the Family Court proceedings was a long-standing friend, Ms C. She has known the applicant for over 24 years. Ms C is the mother of five children ranging in age from five to 20 years She deposed that she had many opportunities to observe the applicant in the company of both adults and children and had never observed him to behave inappropriately.

Submissions

83 Mr Dawson submits that the Tribunal can be comfortably satisfied that the applicant does not pose a risk to the safety of children and as such no conditions under s 9(9) are warranted. Mr Dawson argues, that were it not for the allegations made by the applicant’s former wife in acrimonious family law proceedings, the respondent would not oppose the application sought. The sole psychological evidence before the Tribunal supports the applicant’s claim that he does not represent a risk to children. The Tribunal should have regard to the fact that for over a decade the applicant has held a responsible position caring for vulnerable children and during that time there has been no complaint. While lengthy, the applicant’s criminal history is mostly made up of relatively minor offences, none of which indicate that the applicant may represent a risk to children.

84 The respondent submits that in addition to the sex abuse allegations, weight must be given to the applicant’s history of violence and disobedience to the law. While it was conceded that the psychological evidence was generally favourable to the applicant, the respondent points out that Dr Lennings expressed some serious reservations about the possibility that the applicant may have exhibitionist tendencies. This, submits Mr Bourke, is highly relevant given the access to children that the applicant would enjoy through his work as a nurse.

Findings and Conclusions

85 The issue to be determined is whether the applicant poses a real and material risk to children and if so, whether this can be cured by the imposition of appropriate conditions. It is common ground that, of itself, the index offence would not support a finding that the applicant poses such a risk.

86 While the applicant’s criminal record reveals a long history of disobedience to the law, none of the offences for which he has been convicted involve children or, are of a sexual nature. It does however include three offences of violence. The most disturbing and serious in nature was the 1970 conviction. It represents a serious and unprovoked attack on an elderly and vulnerable woman. However, due weight must be given to the fact that the applicant was then little more than a child and there is no evidence that this extreme behaviour has been repeated.

87 The applicant has gone to some pains to downplay his responsibility for those incidents of violence in which he has been involved. He told the Tribunal that it was his wife, not he, who was the violent and aggressive party in their marriage. He explains away his wife’s 1981 accident and blames her for the 1983 assault. As noted, I am not persuaded of the innocent characterisation of these incidents. The evidence shows that he has physically assaulted his former wife on at least two occasions causing her injury. Whether Mrs A provoked him, in my view, is of little significance. What it shows is that in a heated and stressful domestic environment, the applicant then had a tendency to lose control. Whether he still has is an open question but there is no record of violence of that kind for many years. It is also noteworthy that, bar the 1979 assault, there is no indication that the applicant as an adult has a propensity to lose control outside a domestic context.

88 The expert evidence before me is that the applicant does not present as a paedophile. While as noted, Dr Lennings was confident (as far as one can be) that he would not present a risk to children within a structured work environment, he expressed some reservations about what he considered were the applicant’s exhibitionist tendencies. Accordingly, he thought that the applicant may present some risk in an unstructured work environment such as nannying or voluntary work involving children.

89 As would be expected, Mr Dawson sought to downplay Dr Lennings’s misgivings. According to Mr Dawson, Dr Lennings places undue weight on the nude bathing conviction and mistakenly understood that the more recent charge (subsequently dismissed) of behaving in offensive manner near a public school/ place, involved the applicant urinating in public (which is denied). Even had the applicant urinated in public, argued Mr Dawson, this of itself does not indicate exhibitionist tendencies.

90 I have examined Dr Lennings’s description of the nude bathing offence and see nothing in that description to indicate that he overstated its seriousness. Given the detailed nature of both reports and the otherwise accurate reporting of factual matters, it appears to me highly unlikely that Dr Lennings, as alleged, erroneously recorded that the applicant told him that he had urinated in public. It is somewhat surprising that no independent evidence was put on to verify the applicant’s claim that he had not urinated in public. In any event, even if Dr Lennings were mistaken, a fair reading of the report would not indicate that that incident tipped the scales in his assessment. It is apparent that Dr Lennings was influenced by a number of factors including, importantly, his view that some “untoward sexual behaviour” probably took place between the applicant and his children. (See supplementary report [at 8]).

91 Overall, the report can be seen only as extremely fair to the applicant. It reveals that its author well understands the proper role and obligations of an expert witness. Having carefully examined both reports, I see nothing to indicate, as I understand Mr Dawson to imply, that while Dr Lennings’s overall assessment was carefully and soundly based his conclusions about “exhibitionist tendencies” were not.

92 I am, of course, not obliged to accept any part of Dr Lennings’ opinion. It is of course just that, an opinion, albeit held by a respected practitioner of long standing. The Tribunal is not only entitled to but must bring its experience of the world and commonsense to bear in assessing that evidence. Expert psychological evidence is but one of the many factors to be taken into account in an assessment of the applicant’s risk to children. However, in the difficult task of predicting how a particular individual will behave in the future, an intelligent report by a respected practitioner of long standing should not be ignored. Nonetheless, there is no evidence that the applicant manifested any exhibitionist tendencies while in an unstructured environment caring for children. On Dr Lennings’ evidence, whether he has such propensities is also an open question. However, it would appear that, if he does have such tendencies, the applicant is able to control them in the company of children.

93 As stated above, on the available evidence it is not possible to be entirely certain whether the sexual abuse allegations have or do not have any substance. Because of the injury to the genitalia of one of the children, I am left with some residual concern, to use Dr Lennings’s words, that “some untoward behaviour” may have occurred. If that is so, and it is not a proven fact, the question remains whether the applicant or some other person was responsible. While it is unlikely, it is possible that the injury was self-inflicted. It is more likely, it would seem, that a person other than the child inflicted the injury. If that is so, there remains the question whether the applicant or some other person sexually assaulted her.

94 If one discounts the evidence given against the applicant in the Family Court, which I do, there is virtually nothing to indicate that applicant may have been responsible for injuring the child’s genitalia. We have little evidence of the environment in which the children were brought up, nor do we know anything about other adults or children who may have had access to the child. It is reasonable to assume that there were some but to go beyond this observation is mere speculation.

95 Great significance must, in my view, attach to the applicant’s work history. Over the past twelve years he has worked with children of various ages in a number of environments. There is simply no evidence of any concern being expressed about his behaviour with any of his charges. Dr B’s children are now of the age where they could recognise and report inappropriate conduct and yet apparently no such complaint has been made. If one wished to conduct some sort of behavioural experiment or test to determine the applicant’s propensities, his work history with children would surely be highly significant for that purpose. This evidence supports in the most concrete fashion Dr Lennings’s conclusion that, even if the applicant had acted in some inappropriate way with his own children, the behaviour is unlikely to be repeated outside that relationship.

96 The applicant has told the Tribunal that his primary motivation for seeking an order under s 9(1) is to enable him to work as a registered nurse. An order under s 9(1) made without conditions would allow him to work with children in any capacity.

97 It is impossible in a world of human beings to state with categorical certainty than any living individual constitutes no risk to children. Some people, obviously, are lesser risks than others. In most cases the risk is so low as to be, in practical terms, immaterial. The risk to children with which the Tribunal has to be concerned is a “real or material risk”. To adopt the terminology used in M v M, such a risk would be “unacceptable.”

98 In my opinion, the evidence that the applicant constitutes a risk to children is, when thoroughly dissected, so slight that I cannot regard him as material risk to children. On the other hand, the evidence he has led shows that for many years, in respect of children, he has lived an exemplary life. Having carefully considered all evidence I am therefore comfortably satisfied that the applicant has discharged the onus that he does not represent a risk to children.

Orders

(1) The Child Protection (Prohibited Employment) Act 1998 does not apply to CG in respect to the offence of Indecent Assault Female for which he was convicted on 23 March 1973.
(2) The Tribunal shall notify the Commissioner of Police of the terms of this order.