FGC v Commissioner for Children and Young People and Child Guardian
[2010] QCAT 350
•09 June 2010
CITATION: FGC v Commisisoner for Children and Young People and Child Guardian [2010] QCAT 350
PARTIES: FGC v Commisisoner for Children and Young People and Child Guardian
APPLICATION NUMBER: CML31-10
MATTER TYPE: Children’s matters
HEARING DATE: 09 June 2010
HEARD AT: Brisbane
DECISION OF: Louise Mc Donald (Presiding Member)
Paul Mc Grath (Member)
DELIVERED ON: 09 June 2010
DELIVERED AT: Brisbane
ORDERS MADE: That the decision made by the Commissioner for Children and Young People and Child Guardian made on 18 January 2010 that an exceptional case exists where it would not be in the best interests of children for a positive notice to continue be SET ASIDE.
That the Tribunal substitutes the decision that no exceptional case exists in which it would not be in the best interests of children for FGC’s positive notice to continue.
That a positive notice be issued under the s221 of the Commission for Children Young People and Child Guardian Act to the Applicant FGC forthwith.
CATCHWORDS : Blue card, where the protective factors outweigh the risk factors, where no exceptional case exists in which it would not be in the best interests of children for the applicant’s positive notice to continue. APPEARANCES and REPRESENTATION (if any):
APPLICANT: FGC RESPONDENT: Commisison for Children and Young People and Child Guardian REASONS FOR DECISION
BACKGROUND AND HISTORY OF PROCEEDINGS
1FGC, hereafter also referred to as the Applicant, is an Anglican priest. He was aged 54 at the date of the hearing.
2The Applicant was issued with a positive notice on 26 November 2007. On 17 June 2009 the Queensland Police Service issued the Commissioner for Children and Young People and Child Guardian with a notice that information in their possession constituted investigative information under s121A of the Commission for Children and Young People and Child Guardian Act 2000,(the Act).The Commission reassessed FGC’s eligibility to hold a blue card under s119 (1) (b) of that Act. He was suspended from duties in January 2010 when the Anglican Diocese of Brisbane suspended his licence.
3The content of the investigative information was that a complaint had been received that between 1981 and 1983, the Applicant, then a parish Curate, had engaged in a number of sexual interactions including masturbation, oral and anal sex with a male parishioner while the boy was aged between 16 and 18.
4Specifically the offences which have been alleged included:
(i)That during a three week period when the complainant was entrusted to the live-in care of the Applicant while his parents went on an overseas holiday, the Applicant sexually massaged and performed oral sex on the boy. In 1981, indecent treatment of a boy under 17 was the relevant offence, but was not made out as the absence of consent was an element of the offence.
(ii)That following this immediately following incident, anal sex occurred where the Applicant penetrated the complainant’s anus with his penis. It was alleged that this occurred during the three week stay on multiple occasions. In 1981 the relevant charge was unnatural offences.
(iii)The Applicant was said to have shown the boy pornographic images followed by oral and anal sex.
(iv)The complainant permitted the Applicant to perform oral sex upon him on two occasions
(v)On separate occasions, the complainant stayed with the Applicant in a motel and oral and anal sex took place. The complainant alleged that the Applicant took him to a sex shop, and later attempted to perform anal sex on the Applicant.
(vi)A further instance of oral and anal sex is alleged to have occurred when the complainant visited the Applicant in a caravan park.
5The Applicant was aged 25 at the time the offences are alleged to have occurred and curate priest at the parish church where the boy worshipped with his family.
6The Commission advised the Applicant in writing on 18 January 2010 that his blue card was cancelled and a negative notice was to be issued on the grounds an exceptional case existed in which it would not be in the best interest of children that FGC to hold a positive notice.
7Subsequently, the Applicant filed the report of a forensic Psychiatrist in the Commission and requested that the Commission further consider the new material. A further decision which specifically considered this material was made that an exceptional case existed. The Applicant was notified of this decision on the 3 March 2010.
9The Applicant filed an application to review a decision with the Queensland Civil and Administrative Tribunal on 17 February 2010.
10A directions hearing was held on 7 April 2010. The matter went to hearing on 9 June 2010.
APPLICABLE LAW
11It is noted that the Commissionfor Children and Young People and Child Guardian Act 2000 was substantially amended by the Criminal History Screening Legislation Amendment Act 2010, commencing 1 April 2010. This Act renumbered the sections of the Act upon which decisions had been made by the Commission.
12Section 492(2) of the Act as amended requires the Tribunal to apply the amended act where a decision was subject of an application for review after the commencement of this amending Act.
13Pursuant to the Queensland Civil and Administrative Tribunal Act, (the QCAT Act), the Tribunal is empowered to consider applications for review made under s354 of the Act afresh, taking into account new material, s20 QCAT Act. The application is to be decided upon its merits.
14After reviewing the decision, the Tribunal may under s24 of the QCAT Act: Confirm or amend the decision; or set aside and substitute its own decision; or set aside the decision and return it to the original decision maker.
15The Tribunal is required by s 360 of the Act to base all determinations upon the principle that the welfare and best interests of the child are paramount. S 155 expands upon this to require decisions to be guided by the child’s right to be cared for in a way that protects them from harm and promotes their well being.
16S221 (1) b and 221(2) provide that where an Applicant has not been convicted of an offence but the decision maker is aware of investigative information then a positive notice must issue unless it is an exceptional case in which it is not in the best interest of children to issue a positive notice.
17 While exceptional case is not defined in the Act, s227 of the Act specifies that where investigative information is held, the decision maker must have regard to
(a) When the acts or omissions constituting the alleged offence were committed;
(b) Anything else that the Commissioner reasonably considers relevant to the assessment of the person.18Case law has considered the meaning of exceptional case. It is a question of fact and degree and is to be determined on the facts of the individual case, and is necessarily a matter of discretion[1].
19Re OAA [2006] QCST 14 held that whether an exceptional case exits requires consideration of whether the facts suggest an unacceptable risk of harm to children.
The case provides authority for the import of reasoning on unacceptable risk of harm in family court judgements in to this jurisdiction when considering eligibility for blue cards.
20Commissioner for Children and Young People v V (2002) NSWSC 949, adopted by the Tribunal in Re CAA [2007] QCST 4, indicated a two tiered approach to decision making: focusing on the seriousness of the offence and the current danger to children:
“The Tribunal must evaluate the seriousness of the offences taking into account the age of the applicant when the offences were committed, the age of the "victim" at the time and the difference in ages. The second involves the assessment of the applicant's character now which includes the seriousness of the prohibited person's total criminal record, a matter mentioned by (5)(e) and any other matter which the Tribunal considers relevant. Sub-section (5) then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime; and (b) the applicant's current character, all these matters must come together when the Tribunal is making a decision as to whether to exempt the person from the effect of the Act. The decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has a discretion as to whether or not it will make an order.”[2]
[1] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004]QCA 492
[2] {2002] NSWSC 949 at paragraph 42.
21. The approach in Commissioner for Young People v Maher and Anor[3] endorsed an approach which balanced protective and risk factors to determine whether an exceptional case existed.
[3] [2004] QCA 492
22. The Tribunal must be satisfied that an exceptional case exists on the civil standard of proof, being the balance of probabilities. Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, applied Commissioner for Children and Young People and Child Guardian v Maher & Anor
EVIDENCE
DOCUMENTATION RELEVANT TO PROFESSIONAL STANDARDS BOARD PROCEDEEDINGS IN THE ANGLICAN CHURCH.23The Determination and Recommendation of the Professional Standards Board of the Anglican Church, together with the transcript of these proceedings indicate that the particulars which form the basis of the allegations were not contested. Therefore, those proceedings proceeded on the basis that these allegations had been admitted.
24An investigation report of Paul Smith of Counsel dated 25 March 2009, which was relied upon by the Board, made findings of fact that the sexually inappropriate behaviour had occurred between the complainant and the Applicant during 1981 to 1983. Mr Smith interviewed the complainant and another youth who was referred to in the police statement as well as a third party. The Applicant refused to be interviewed for that investigation. A transcript of the interview with the complainant was provided. It further detailed the events related to the allegations. Significantly, the complainant indicated that he did not pursue the police investigation because of the trauma related to the pretext telephone call and the police error in failing to record the Applicant’s conversation. Mr Smith in his report describes the complainant as a believable witness, noting however a lack of corroboration, but some support from another youth to add to his view of the complainants credibility.
25It is important to note that the hearing conducted on 19 January 2010 before the Professional Standards Board, did not take any oral evidence. The Applicant chose not to give oral evidence. The Board concluded that the Applicant was not fit to hold Holy Orders due to the gravity of the breach of trust it found to have occurred as a result of the actions sourcing the allegations. It is noted that this decision is under review.
26Importantly, the Board considered a different issue to that before the Tribunal. It assessed the Applicant’s suitability to continue as a priest, based on behavioural standards relevant to holding such a morally high office. This is a separate issue to risk of harm to children which is the issue before the Tribunal. Nevertheless, the documents were relevant to the Tribunal in so far as the facts of the allegations under consideration were not contested: Specifically,
“ Respondents submissions: The respondent relies upon his relative his youth an immaturity at that time the conduct was committed against the complainant in that he was only nine years older than the complainant, that he was struggling with his sexuality at the time and that and the misconduct was limited to the one relationship. The respondent submits that it is relevant that he subsequently come to terms with his sexuality and the psychiatric evidence supports that he is now not a risk of behaving sexually inappropriately to others.” [4]
[4] Determination of and Recommendations of the Professional Standards Board Anglican Church Diocese of Brisbane re ref 1/09. Decision dated 12 February 2010, P 6: Submissions of Applicant.
27The Tribunal considers that particulars admitted in another jurisdiction, indicating that there was a sexual relationship between the Applicant and a boy aged between 16 and 18 lasting three years, tends to support a reasonable suspicion that alleged conduct did occur. The Western Australian Case of Grindrod v Chief Executive Officer Department for Community Development [2008] WASAT 289 provides persuasive guidance about how the Tribunal should consider such material.
“It must be taken, for the purposes of the Act, that where there is a reasonable suspicion that a person has committed the offences the subject of the non-conviction charges, where those offences are highly relevant to working with children, a risk of repetition of the conduct the subject of the charge is assumed. It is necessary to look at all of the circumstances to determine whether that assumed risk is an unacceptable risk that the Applicant might cause physical or sexual harm to a child in future. As Buss JA noted, factors which bear upon the risk include the seriousness of the risk of harm and the likelihood of the risk materialising.”
28Although referring to Western Australia’s analogous legislation, the Tribunal considers it valuable guidance in reaching a determination in this matter.
29The Tribunals decision has proceeded on the basis that an assumed risk is present on the current facts, but in order to determine whether an unacceptable risk exists, has looked to the balance of the evidence as to whether the Applicant might cause harm in the future, noting the factors of the seriousness of the risk and the likelihood it will materialise in the future
CONSIDERATION OF OTHER EVIDENCE:
FGC’S EVIDENCE
30The Applicant gave evidence but claimed a blanket privilege against self incrimination in discussing aspects of any relationship with the complainant. The Tribunal considered that this was a reasonable excuse within the meaning of s 98 QCAT Act, and did not question the Applicant on this issue. The Commission also did not question the Applicant in this regard.
31Because privilege was claimed, the Tribunal was unable to ascertain whether there is remorse or insight in relation to offences which are alleged to have occurred.
32The Applicant gave oral evidence to the Tribunal about his background and personal history. He presented evidence of a stable early family life with both parents and an older sister. He has consistently maintained a close relationship with all of his family throughout his life. He commenced the study of Drama upon leaving school as a temporary measure until he could be ordained as a priest. After a year, and some instances of ill health he commenced biblical studies. These were temporarily interrupted by a further ill health, and he moved west in 1976 to work with the bush brotherhood in their work in rural and remote communities. He completed his studies in 1979 and as he was too young to be ordained, he returned to the bush brotherhood for the entirety of 1980.
33On 8 February 1981 he was ordained as a Deacon and appointed to a Parish, commencing on 9 February 1981, shortly before his 25th birthday. On 1 December 1981 he was ordained a priest, and continued as curate of the Parish.
34In 1984 he moved to another parish as part of gaining the experience necessary before becoming a parish priest. During this period he taught religious education in primary school. He indicated that he did not enjoy teaching the children, indicating that he was uncomfortable by being placed in awkward situations with children, and absented himself from teaching religious education for this reason. He gave evidence that when a child had hugged him he avoided contact and felt he said he was conscious of the changing role of adult’s rules relating to children in this regard and did not want to put himself in a position where his actions could be misconstrued. In essence he sought to avoid contact with children for this reason.
35Between 1984 and 1988 he was the parish priest at a country parish.
36From 1989 -1992 he worked for the Anglican Board Mission and began visiting overseas preaching and conducting ceremonies.
37Between 1993 and 2001 he was the parish priest another parish. He stated that his ministry focused on services and weddings. He stated that he had no involvement in Sunday school which occurred during service times. Neither was there momentum for a youth service. He therefore claimed that he had little involvement with children throughout his appointment.
38During that time he was appointed Commissary for the Archbishop of X, making him the Archbishop’s representative in Australia, which he held from 1996 until 2009 when he was suspended from this as a result of the allegations which form the basis of this review. In this role he also welcomed hundreds of Islanders and people travelling to the pacific island into his home and facilitated their transit.
39In 2000, he was appointed Canon of the Cathedral of St Y in P, in recognition for his services. As well as this he was awarded a medal for services to the Church and community development by the overseas Government.
40He has been parish priest at his present parish since 2001. He described his daily work to be split between services, visiting the sick and frail, preparing for services and undertaking administrative responsibilities. He indicated that demographically his current parish is heavily populated with aged people, with significant number of late aged, no youth group, and very few children. His contact with children and young people through the parish is at services and baptisms.
41He stated that he had little interaction with children at the rectory, having 3 in the last two years visit always accompanied by an adult who was the primary visitor. He indicated that he had little interaction with children or young people given that the demographics of his parish and the absence of a youth group.
42He explained a friendship with one of his witnesses, FV, now aged 19 years, which arose as a result of the Applicant’s links to overseas. FV was 15 when the Applicant approached offering support in Australia and a link with the church. They have been friends for four years. He was identified as FV’s guardian in Australia in late 2006, and has provided weekend accommodation to him while he was completing high school. He would take him to soccer matches and wash his clothes on those occasions.
43He advised that he had an informally “adopted” son overseas, B, who had named his children after the Applicant, taking on his family name, and maintaining a close relationship in a father – son model. He indicated that he has taken financial and emotional responsibility for the young man responding when he seeks his assistance. In most respects this was effectively a parental relationship in his view. He said he had informed this young man and his wife of the allegations. He has weekly telephone contact with him.
44The Applicant was questioned regarding his views about priests in their fifties having relationships with a young person who was of age. He indicated that he had difficulty seeing how such a relationship would work given the age barriers, and a likely clash of values. He considered it would be difficult to bridge such a gap. He noted that a relationship with any parishioner would place a responsibility on the priest to avoid undue influence upon the parishioner. He expanded by indicating it would be inappropriate for a young person because they were still working out their values and this could be hurtful and damaging to the younger person.
45He indicated that he used strategies to protect himself from further allegations such as never counselling one on one in the house if he does not know someone. He also indicated that he take seriously risk audits.
46He showed demonstrated some empathy in describing the experience of a child abused by a priest to be a violation, a breach of trust, and a difficult and damaging experience. The Tribunal noted that these statements had been fairly cursory responses, and placed little weight upon them.
DR I
47Dr I is a forensic psychiatrist of 36 years experience, with a specialty in assessing sexual deviance. He indicated that he has worked extensively with priests who have abused children.
48His methodology included a clinical examination of the Applicant over four sessions, including an assessment using the PAI (Personality Assessment Inventory) and a focus upon sexual fantasy life of the Applicant.
49He provided a report dated 14 January 2010, and was extensively questioned during the hearing.
50His report concludes that there was no clinical indication of compulsive sexual deviation, no signs or symptoms of paraphillias or compulsive predatory paedophilia. He determined that a depression was present arising from the situation the Applicant finds himself in, and is prone to drink excessively. He noted that the Applicant had developed high degrees of altruism and sublimation of basic drives which he has invested in the ministry and community service.
51He refers to another opinion from psychiatrist Dr L who examined the Applicant in 2009, which supports his conclusion.
52He presented verbal evidence that he concluded that there was nothing deviant about the Applicant or indicative that he was a danger to adults or children. In making this statement he specifically highlighted his awareness of his duty to children and young people and to courts and Tribunals.
53In his view, the Applicant was not as libidinous as the average man of his age. The Applicant did not have a high degree of sexual fantasy or activity. He had been “confused” about his sexuality in that he had not made up his mind what sexual orientation he was, noting that there was a broad range of sexuality. He considered that he had chosen not to partner, and he was truly married to the church.
54He stated that even if the allegations were assumed to be true of the Applicant some thirty years ago, his view would not be altered on the grounds that the man he interviewed now shows:
(1) No signs of compulsive sexual acting out over time since these allegations were based. There has been nothing since. Deviants, he noted had a compulsive nature such that is more than once instance.
(2) The Applicant is not the same man as he was in his youth, having had hormonal changes typical of aging. He stated that a man of the Applicant’s age is likely to have hormone make-up closer to a female, not being dominated by testosterone and other hormones which provide dominating, competitive action oriented and impulsive behaviour.
55. He stated that he did not consider the Applicant was predisposed to deviant sexual acts. He noted that deviance has two elements, and inner compulsion and a predatory nature along with a deviant sexuality. He said if there was a predisposition to deviance the waning of hormones would not affect this behaviour even in the later years.
56. He confirmed that it was his view that even if the allegations occurred at the time there has been no indication of deviance since and he is no more a risk to the community. He said assuming events had occurred as alleged, it was likely to be an experimentation of early adulthood, part of the “craziness of the age group” where the executive functioning of men matures ten years later than for women, and this was vastly different to the Applicant at 54 years.
57. He doubted that the mild diagnosed depression would exacerbate as he had considered the Applicant a mature person who had factored in the potentialities in relation to his future and was likely to maintain integrity.
58. He noted that for a bachelor priest he had above average flexibility in his attitudes to life and dealing with other adults. He noted that the Applicant was a social man, prone to welcoming and accommodating guests in his home.
59. He considered that the Applicant had the capacity for insight and empathy equal to any mature male. He noted that the Applicant’s experience of a serious sexual assault at age 18 was likely to be influential in his decision not to partner, and that there was likely to have been a post traumatic response.
60. He stated it was his confident clinical opinion, having examined many clergymen before the courts for molesting students that “he is not like them.”
FV
61. FV gave evidence that he connected with the Applicant in his capacity as Commissary to the Church of Y when he arrived to undertake his three year scholarship in 2006. The Applicant became identified as his host family and FV would spend weekends at the rectory. He described him as being like a father to him, never exhibiting any sexual or inappropriate behaviour toward him. He said he assisted him to learn about culturally appropriate ways of doing things such as customs regarding eating, and manners, and behaviour regarding girls when FV was pursuing an Australian girlfriend. FV described himself as strongly religious and valuing respect. He as since married an Australian girl, and is expecting a child. When made completely aware of the nature of the allegations, he stated that he confidently doubted the allegations because he did not think that the Applicant was that kind of person. He stated that he had never tried anything intimate with him, despite having the opportunity. He said that the Applicant would respond to his request for tips on how to treat a western woman.
62. The Tribunal formed the view that he was a believable witness of high integrity, who held the Applicant in very high regard.
DR A‘S EVIDENCE
63. Dr A is a parishioner of the Applicant’s current parish who has known the Applicant for the past nine years. He is a retired child and adolescent psychiatrist of repute. It is noted that Dr I foreshadowed in his evidence that Dr A is widely respected, and known for his caution.
64. Dr A described the Applicant as an excellent priest, with great integrity, honesty and great concern for people in his pastoral care. He characterised him as selfless and kind, and as a generous man who understands people. With the knowledge of the nature of the allegations he confidently stated that his opinion of him had not changed, having known his character over the past nine years he was confident that he was not a risk to children. He said that he had seen him interact with children and teenagers and considered that the Applicant exhibited exemplary conduct.
MS ER
65. Ms ER indicated that she had known the Applicant for 20 years, having regular contact since that time through their ministries. Ms ER indicated that she had worked for the Commission for Children Young People and Child Guardian as a Torres Strait Islander representative, with intimate knowledge and understanding of the requirements for blue card holders, and continued to consider the Applicant formed no risk to children.
66. Ms ER has never seen him interact with children. She stated that the allegations do not reflect who he is. With knowledge of the specific nature of the allegation she stood firm in her view that he was not a risk to children.
FR BT
67. Fr BT has known the Applicant for over 30 years, having met him in the late 1970s during their work with the Bush Brotherhood. They have had on and off constant contact since that time. They shared a community house during in Dirranbandi for the time the Applicant was there. He indicated that the Applicant’s work at that time involved much work with young boys. He observed nothing untoward in his behaviour toward the boys and noted that the Applicant did not relish their company. He stated that he had to push the Applicant to get involved with the boys and the Applicant does not seek out the company of children generally.
68. He noted his character was careful, astute at doing what has to be done. He has applied himself obediently to the church and extended himself in the church overseas. He was aware that he was respected by his parish. He thought he would be constrained in what he would complain about but has sought advice and counselling at times. He thought however, he would largely bear stressors by himself.
69. He stated that he was aware that the allegations had come from a complainant with a “dysfunctional family situation” who was known to be “wild” and who had not “got his act together.”
GF
70. Ms GF had known the Applicant nine years in her capacity as parish secretary at the Applicant’s current parish. She described him as completely honest in any dealings. She noted that he had been insistent that all members of parish council have a blue card, both in order to protect children and to follow the rules. She stated that she said she couldn’t believe that he could possibly be involved in the actions sourcing the allegations. She described him as compassionate and honest.
71. She said she had weekly dinner with him in which she there had been occasions where he would seek her support.
72. In her role, she stated that she had become aware of all his friends and colleagues and she would describe him as a social man.
SB
73. Mrs SB had weekly contact with the Applicant over the past nine years through parish council and various church activities. She stated he was a fine priest, always honourable, loved by his parishioners. She had never seen any inappropriate behaviour from him, describing him as an excellent priest, who was an extremely caring person, attending to the sick, and caring deeply for his parishioners. She stated that if the allegations were true she would have no different opinion of him as there had been a passage of almost thirty years. She knew who he was now and had no concerns that he was a risk to children.
DISCUSSION OF THE EVIDENCE
SERIOUSNESS OF THE RISK
74. The Tribunal considered the grave nature of the allegations where a priest in a position of trust and authority is said to have conducted a sexual relationship with an adolescent boy entrusted by his parents to his care where that trust was assumed by virtue of his office as priest. The position of trust and power that the Applicant occupies exacerbates the seriousness of the risk.
75. The allegations suggest that there was a significant age gap between the two and a further absence of insight into the power differential. There is the suggestion of an ongoing pattern which occurred over almost a three year period, which included the supply of alcohol, introduction of pornography and sex shops.
76. At the complainant’s particular developmental stage at the time of the alleged offence, when the child is likely to be awakening to his own sexuality, which is a developmental task of adolescence, he was highly vulnerable to long term emotional harm as a result of such conduct. The risk of harm is of a very serious nature.
77. The Tribunal must consider this in light of such a risk materialising.
LIKELIHOOD OF THE RISK MATERIALISING.
78. Applicant submitted that even if there is a reasonable suspicion that there is substance to the allegations, the Applicant does not constitute a risk to children presently or in the future. The confident recommendations of Dr I indicated that even if the allegations were assumed true, he did not consider the Applicant to be presently a risk to children, such conduct be true could be put down to sexual experimentation in his youth. It is noted that Dr I was prohibited by the Applicant’s legal representative from addressing issues regarding the specific relationship with the complainant. However, he noted that the Applicant displayed the normal level of insight and empathy of the average man.
79. Further, the Applicant submitted that he is a now 54 year old man, with no criminal history, and a life which has had little contact with children. He submits that these allegations, are about events allegedly occurring 28 years ago, and the Applicant has since led an exemplary life, commanding the respect of moral church going people who have known him for long periods. The Applicant submitted that he had demonstrated insight into his role of a priest in a position of trust and authority over children and young people.
80. Character witnesses were all persons of notable character, active church goers in the Applicants parish, and a priest who had known the Applicant for over thirty years. All held a very high regard for him, perceived him as no risk to children in spite of the specific allegations.
81. The Tribunal is of the view that the character evidence, together with the Applicants oral evidence suggests that he did not at any stage through his life as a priest seek out work with children and young people, and was actually inclined to avoid work with children in this regard. These people have been in a position to monitor the Applicant in the very public role as parish priest and have formed an assessment of the Applicant as a good man, committed to a life a compassionate service and unlikely to cause any form of harm to children.
82. The Commission noted that the Applicant had maintained close father figure relationships with two adolescent boys in recent years and suggested that strong associations with young men in their formative years was “ unusual”, although no sexual misconduct had been identified or alleged in his friendships with them. The Counsel for the Applicant rejected that these relationship reflected any continuing impropriety but were indicative of the compassion and empathy that he held across the board with young people and the elderly and sick that were all foci of his ministry. The Tribunal is inclined to accept the Applicant’s submission, it being consistent with evidence provided by FV and that of the parish character witnesses.
83. In support of submissions that it is the current risk that is the relevant consideration in determining whether an unacceptable risk existed ,the Tribunal was referred to cases of Re Re AAF[2006]QCST 6; Re AAJ[2006] QCST 10; Re BAD [2007]QCST 24; re BAD[2008] QCST 13; Re BAF[2008]QCST 15; Re CAA[2007] QCST 4; Re FAA [2006] QCST 15; Re GAB[QCST 20; HAC [2007] QCST 16; Re MAA [2003] QCST 1; Re MAC[2007]QCST 22; RAB[2006] QCST 29.re RAB [2006] QCST 12; and SAA [2006] QCST 17. These cases considered the likelihood of harm in the present and future.
84. It is significant to note that RAB [2006] QCST 12 was appealed in the District Court in Commissioner for Children and Young People and Child Guardian v Ross [2008] QDC 82. The decision was overturned on the basis that the Tribunal did not have psychiatric evidence before it, had notice of a possible adverse recommendation from treating psychiatrist, and given the gravity of the convictions for sexual assault, the applicant had a high onus to prove an exceptional case. The Tribunal did not have all the information before in that case, and the appeal was allowed. However, this case can be distinguished from the current application as all the material, including a very favourable psychiatric report, was before the Tribunal.
Balancing Risk and Protective Factors
85. The test in Commissioner for Young People v Maher and Anor[5], these risk factors are to be balanced against protective factors.
[5] ibid
86. The Commission submitted that the serious nature of the alleged offence and the reasonable suspicion that they had occurred weighed heavily as a risk factor.
87. The Commission considered that the Applicant had a pattern of seeking his own counsel until things became bad. They saw this as both a risk and protective factor. Further they submitted that a picture of the Applicant’s remorse was unable to be ascertained given the claim to privilege from self incrimination.
88. The Commission submitted that as the Applicant had not been around children for much of the past 28 years; it is untested what risk he may pose.
89. The Commission, considering the transferability of the blue card, submitted considerations that if the Applicant lost his position as a priest he is exposed to a job loss and loss of involvement with his community through the parish, and has no partner to offer support. The Tribunal notes that such a submission is a potentiality, but accepts Dr I’s evidence that the Applicant is a social man, who has factored this potentiality and is unlikely to decline in his mental health on this basis. The Tribunal further notes that he is extensively supported by the people of his parish and has indicated multiple longstanding friendships with whom he maintains support. He is not isolated and disconnected.
90. The Tribunal considers that the evidence of Dr I, an eminent and longstanding psychiatrist in the field of sexual deviance , weighs heavily to suggest the Applicant does not have the psychological or biochemical make-up that tends toward sexual deviance that there a very minimal likelihood that any risk may materialise.
91. Further protective factors exist in absence of offending in the 28 years period in which the Applicant has led a life an exemplary life of altruism and service to the church and community. This is a specific consideration under s 227. He is a highly respected priest both here and overseas, being awarded high honours by the Church and government for his work. He has been closely monitored in the very public role of parish priest during that time and the character witnesses before the Tribunal regard him with high esteem. The Tribunal notes Dr I’s reference to the sublimation of his drives which he has invested in ministry and community service.
92. In the Tribunal’s view the protective factors outweigh the risk factors. While the risk is of a serious nature, the tribunal is satisfied that the likelihood of the risk materialising is negligible, and indicates that there is not an unacceptable risk of harm to children.
93. Therefore, on the balance of probabilities, the Tribunal is of the view that there is not an unacceptable risk of harm to children and on that basis an exceptional case does not exist. Therefore, the Commission is required to issue a positive notice under s221.
7