FTB v Children's Guardian

[2024] NSWCATAD 44

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FTB v Children’s Guardian [2024] NSWCATAD 44

Hearing dates:

21 September 2023
(Submissions closed 14 November 2023)

Date of orders:

21 February 2024

Decision date:

21 February 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer Senior Member
M Maher General Member

Decision:

1. Pursuant to s 16 (3A) and s 16 (5) of the Child Protection (Offenders Registration) Act 2000 we decline to make an order suspending FTB’s reporting period.

2. We decline to make any order under s 16 (11) of the Child Protection (Offenders Registration) Act 2000 shortening the period in which FTB may reapply to the Tribunal.

Catchwords:

ADMINISTRATIVE LAW Child Protection – Offenders Registration – Whether applicant continues to pose a risk to the safety and wellbeing of children

Legislation Cited:

Child Protection (Offender Registration) Regulation 2015

Child Protection (Offenders Registration) Act 2000

Child Protection (Prohibited Employment) Act 1998 (repealed)

Child Protection (Working with Children) Act 2012

Child Sex Offenders Registration Act 2000 (SA)

Civil and Administrative Tribunal Act 2013

Crimes (Sentencing Procedure) Act 1999

Criminal Code Act 1995 (Cth)

Cases Cited:

BQF v Children’s Guardian [2015] NSWCATAD 225

DCZ v Children’s Guardian [2018] NSWCATAD 81

DKP v Children’s Guardian [2018] NSWCATAD 303

FHV v Children’s Guardian [2023] NSWCATAD 246

Texts Cited:

Nil

Category:

Principal judgment

Parties:

FTB (Applicant)
Children’s Guardian (First Respondent)
Commissioner of Police NSW Police Force (Second Respondent)

Representation:

Counsel:
A Sapienza (Respondents)

Solicitors:
Applicant (self represented)
Crown Solicitor (Respondents)

File Number(s):

2023/00078912

Publication restriction:

s-64 (1) (a) of the Civil and Administrative Tribunal 2013 applies to the name of the applicant and any family members of the applicant, non expert witnesses or individuals other than professionals - prohibiting or restricting the disclosure of the name of any such person

REASONS FOR DECISION

Introduction

1. The applicant was convicted of a number of sex based offences. As a result of those matters the applicant is a person subject to the supervision and reporting obligations of applicable legislation.

2. Those reporting obligations mean that the applicant must seek permission from the Commissioner of Police to do various things (such as travel outside of NSW) or provide updated information when his details (such as address - change).

3. By application which was filed on 9 March 2023 with the New South Wales Civil and Administrative Tribunal (the Tribunal) the applicant ‘FTB’ seeks a review under the Child Protection (Offenders Registration) Act 2000 (the CPOR Act).

4. The applicant is referred to as ‘FTB’ in these proceedings. FTB is the applicant's pseudonym used in these proceedings in conformity with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

5. The orders sought by FTB are: an order suspending the registrable person’s (i.e.: the Applicant’s) reporting obligations for the length of time by which the registrable person’s reporting period was extended under section 15 (3).

6. Section 15 of the (CPOR) Act deals with suspension and extension of reporting obligations. Section 16 refers to the Tribunal exempting persons from compliance with reporting obligations. Importantly, s 16(1) says the following:

“This section applies to a registrable person;

(a) Who is required to continue to comply with reporting obligations imposed by this part for the remainder of his or her life; or

(b) This reporting period has been extended under s 15(3) whether or not he or she is a person referred to in para A”.

7. FTB was convicted of sex offences and served a custodial sentence. At the time of the application and the hearing FTB remains a person who is a registrable person by reference to his convictions. The CPOR Act provides that a ‘registrable person’ is required to comply with ‘reporting obligations’ because they were convicted by a Court of a ‘registrable offence’, being a Class 1 or Class 2 offence as outlined in s 3 of the Act.

8. In January 2001 FTB was convicted of two counts of commit act of indecency on a person under 16 years, three counts of incest and one count of carnal knowledge.

9. When the CPOR Act commenced, incest and carnal knowledge were classified as Class 1 offences being considered more serious than Class 2 offences. The offence of commit act of indecency person under 16 years was classified as a Class 2 offence. The Tribunal observes that there have been changes to the CPOR Act since its commencement and that some of the terms have different applicability as a result. However for the purpose of these proceedings, whilst FTB was convicted and sentenced some months prior to the commencement of the CPOR Act in 2001, in our view after thoroughly examining the legislative provisions, FTB falls within the provisions of a ‘registrable person’. We did not understand this issue to be in contest in the proceedings before the Tribunal.

10. A registrable person’s reporting obligations for a person who completed the custodial component of their sentence in 2008 is 15 years. This is because FTB had been found guilty of more than one registrable offence but has not subsequently been found guilty of another (subsequent) registrable offence. Section 14 A (1) (b) (ii) provides:

14A Length of reporting period

(1) A registrable person must continue to comply with the reporting obligations imposed by this Part for—

(a) 8 years, if the person has only ever been found guilty of a single Class 2 offence, or

(b) 15 years, if the person—

(i) has only ever been found guilty of a single Class 1 offence, or

(ii) has ever been found guilty of more than a single registrable offence but is not covered by paragraph (c), or

(c) the remainder of the person’s life, if the person is a registrable person in respect of—

(i) a Class 1 offence and the person subsequently commits and is found guilty of another registrable offence, or

(ii) a Class 2 offence and the person subsequently commits and is found guilty of a Class 1 offence, or

(iii) a Class 2 offence and the person subsequently commits and is found guilty of another Class 2 offence and has ever been found guilty of 3 or more Class 2 offences.

(Emphasis added)

11. The reporting period for FTB would have expired on 15 February 2023 had the period not been extended. The CPOR Act makes provision for the extension of a registrable person’s reporting period if any of the factors in s 15 are enlivened. Section 15 of the CPOR Act provides:

15 Suspension and extension of reporting obligations

(1) A registrable person’s reporting obligations are suspended for any period during which—

(a) the person is in government custody, or

(b) the person is outside New South Wales unless the person is a person to whom Division 5 applies or the obligation is under section 11B, or

(c) the person is the subject of an order in force under section 16 (or an equivalent order in a foreign jurisdiction), or

(d) the person is the subject of an interim supervision order or extended supervision order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017.

(2) The period for which a registrable person’s reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (a).

(3) The period for which a registrable person’s reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (b) if, during the time in which the obligations are suspended, the registrable person—

(a) is travelling outside Australia for one month or more or is resident outside Australia, and

(b) is not required to report under any corresponding Act.

(4) The period for which a registrable person’s reporting obligations continue is extended by any countable period during which the person is in breach of the person’s reporting obligations.

(5) For the purposes of subsection (4), a countable period occurs when a person fails to make an initial report under Division 2, or an annual report under section 10, within one month after the day on which the report was due to be made. In such a case the countable period—

(a) commences one month after the report was due to be made, and

(b) finishes when the person reports the person’s relevant personal information to the Commissioner of Police, and

(c) does not include any period during which the person’s reporting obligations are suspended.

12. In FTB’s case various provisions of s 15 were enlivened when he travelled outside of NSW. Sections 15 (1) (b) and (3) (above) were enlivened when FTB travelled outside of NSW for a month or more and was not required to report. The records obtained by the respondents indicate a period of 1,329 days spent outside of NSW during the reporting period. Additionally the place where FTB spent the majority of that time was the United States of America (USA) which is a jurisdiction that does not have a similar reporting obligation law equivalent to the Act as specified in cl 5 of the Child Protection (Offender Registration) Regulation 2015 (the Regulation).

13. As a result of these matters FTB’s reporting period was extended by 1,329 days from 15 February 2023. And subject to any further suspensions will be due to expire on 7 October 2026.

14. However, in 2017 the Commonwealth Parliament passed legislation requiring persons on the Register to obtain permission of the relevant Police Force prior to engaging in overseas travel for the period that they were under supervision and remained on the Register. The Criminal Code Act 1995 (Cth) provides:

Division 271A -- Overseas travel by certain registered offenders

271A.1 Restrictions on overseas travel by certain registered offenders

(1) A person commits an offence if:

(a) the person is an Australian citizen; and

(b) the person's name is entered on a child protection offender register (however described) of a State or Territory; and

(c) the person has reporting obligations (however described) in connection with that entry on the register; and

(d) the person leaves Australia.

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to paragraph (1)(a).

Note: For absolute liability, see section 6.2.

(3) Subsection (1) does not apply if:

(a) a competent authority (within the meaning of section 12 of the Australian Passports Act 2005 or section 13 of the Foreign Passports (Law Enforcement and Security) Act 2005 ) has given permission (however described) for the person to leave Australia; or

(b) the reporting obligations of the person are suspended at the time the person leaves Australia.

Note: The defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3).

15. As a result FTB requires Police approval whilst he remains on the Register, prior to engaging in overseas travel. FTB sought approval for overseas travel from NSW Police in 2022. FTB was seeking to travel to the USA from 15 August 2022 to 12 February 2023. NSW Police refused his application and declined to give permission for overseas travel. (For travel prior to the 2017 amendment to the Criminal Code Act 1995 (Cth)permission was not required).

16. The requirement for permission to engage in overseas travel persists whilst a person remains on the Register.

17. The CPOR Act provides for a person under reporting obligations to apply for a suspension of the order (in respect of the extended period) under s 16 (3A) of the CPOR Act. The application is made to the Tribunal and provides that the Tribunal may suspend the reporting obligations for the length of time for the extended period if the Tribunal is satisfied that an application does not pose a risk to the safety of children. The section provides:

(3A) On the application of a registrable person referred to in subsection (1) (b), the Civil and Administrative Tribunal may make an order suspending the registrable person’s reporting obligations for the length of time by which the registrable person’s reporting period was extended under section 15 (3).

(4) The Civil and Administrative 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.

(emphasis added)

18. FTB therefore seeks a ruling by the Tribunal that he does not currently pose a risk to the safety of children so that the Tribunal may suspend his reporting obligations for the period 16 February 2023 to 7 October 2026 inclusive.

Procedural Background.

19. FTB’s application to the Tribunal named the Children’s Guardian as the respondent to the application. That is because s 16 (4) of the CPOR Act provides that the Children’s Guardian be a party to such an application to the Tribunal under s 16.

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

20. A subsequent application was made by The Commissioner of Police to be joined to the proceedings as a party. That application was based on the operation of the CPOR Act and the wish to make submissions about the operation of sections 14A and 15 of the CPOR Act and the position that as the administrator of the Child Protection Register under the CPOR Act the Tribunal should be properly informed by the Commissioner.

21. As a result of that application the Commissioner was joined as a party to the proceedings following an interim hearing by order made on 25 May 2023. The order was ultimately made by consent on the basis that the Commissioner’s involvement was limited to making submissions and providing evidence concerning the timing and length of FTB’s reporting period.

Risk background

22. In preparation of the hearing the Children’s Guardian made submissions that on the available evidence the Tribunal could not be satisfied that FTB does not pose a risk to the safety of children, and as a result the Tribunal could not make an order suspending FTB’s reporting obligations. The Children’s Guardian raised a number of matters to support the position that FTB continues to pose a risk such as the seriousness of his overall offending, his conduct as a whole, but significantly FTB’s attitude to his offending.

Jurisdiction of the Tribunal

23. The jurisdiction of the Tribunal under Part 3 of the CPOR Act is taken to be protective and not punitive in nature. As previously observed in the single case concerning the CPOR Act before the Tribunal in first instance, the purpose underlying the analysis of the evidence is to achieve that protective goal as set out in the objects of the CPOR Act. see s 2A of the CPOR Act.

2A Objects of Act

The objects of this Act are—

(a) to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and

(b) to ensure the early detection of offences by recidivist child sex offenders, and

(c) to monitor persons who are registrable persons, and

(d) to ensure that registrable persons comply with this Act.

24. As noted at [6] above, the Tribunal may suspend a registrable person’s reporting obligations under the CPOR Act. Section 16 enlivens the Tribunal’s jurisdiction. The section provides:

16 NCAT may exempt persons from compliance with reporting obligations

(1) This section applies to a registrable person—

(a) who is required to continue to comply with the reporting obligations imposed by this Part for the remainder of his or her life, or

(b) whose reporting period has been extended under section 15 (3) (whether or not he or she is a person referred to in paragraph (a)).

(2) If (in the case of a registrable person referred to in subsection (1) (a))—

(a) a period of 15 years has passed (ignoring any period during which the registrable person was in government custody) since the person was last sentenced or released from government custody in respect of a registrable offence or a corresponding registrable offence, whichever is the later, and

(b) the person did not become the subject of a life-long reporting period under a corresponding Act while in a foreign jurisdiction before becoming the subject of such a period in New South Wales, and

(c) the person is not subject to parole or licence in respect of a registrable offence (whether in New South Wales or a foreign jurisdiction),

the person may apply to the Civil and Administrative Tribunal for an order suspending the person’s reporting obligations.

(3) On the application of a registrable person referred to in subsection (2), the Civil and Administrative Tribunal may make an order suspending the registrable person’s reporting obligations.

(3A) On the application of a registrable person referred to in subsection (1) (b), the Civil and Administrative Tribunal may make an order suspending the registrable person’s reporting obligations for the length of time by which the registrable person’s reporting period was extended under section 15 (3).

(4) The Civil and Administrative 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.

(5) In deciding whether to make an order under this section, the Civil and Administrative Tribunal is to take the following matters into account—

(a) the seriousness of the registrable person’s registrable offences and corresponding registrable offences,

(b) the period of time since those offences were committed,

(c) the age of the registrable person, the age of the victims of those offences and the difference in age between the registrable person and the victims of those offences, as at the time those offences were committed,

(d) the registrable person’s present age,

(e) the registrable person’s total criminal record,

(f) any other matter the Tribunal considers appropriate.

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

(7) As soon as practicable after receiving an application under this section, the Civil and Administrative Tribunal must notify the Children’s Guardian of the application.

(8) The Civil and Administrative Tribunal must notify the Commissioner of Police of the terms of any order made under this section.

(9) The Civil and Administrative Tribunal may not award costs in respect of proceedings under this section.

(10) A party to proceedings under this section may appeal to the Supreme Court, on a question of law, from any decision of the Civil and Administrative Tribunal in the proceedings.

(11) An applicant in respect of whom the Civil and Administrative Tribunal refuses to make an order under this section is not entitled to make a further application to the Tribunal until 5 years have elapsed from the date of the refusal, unless the Tribunal otherwise orders at the time of the refusal.

(12) In this section, Children’s Guardian means the Children’s Guardian appointed under section 115 of the Children’s Guardian Act 2019.

The application for review

25. The grounds of the substantive application were as follows:

1. The extension of reporting obligations arises due to legitimate travel by the Applicant’s [sic] to his native USA. More than 37 years have passed since the offending and the Applicant is now 80 YOA (years of age). He presents no risk and so the extension serves no purpose, is an unreasonable imposition and is open to abuse (see ground 2 below).

2. To prevent abuse by NSW police, including of their power to refuse the Applicant permission to travel to the USA. The power vests while the Applicant has reporting obligations.

26. More detailed grounds were provided in written material submitted by FTB.

27. The issue to be decided by the Tribunal is whether on the balance of probabilities FTB does not pose a risk to the safety of children. If the Tribunal can be satisfied that this is the case, then it is open to us to make an order suspending FTB’s reporting obligations for the length of time by which their reporting period was extended under section 15 (3). In effect waiving further reporting requirements as at the date of 15 February 2023. If we cannot be satisfied that FTB does not pose a risk to the safety of children, we cannot make an order and the application must be refused.

28. As noted FTB was legally represented up until the days prior to the hearing. The Tribunal asked FTB at the beginning of the hearing whether he was ready to proceed noting that his legal representation had ceased only a few days prior to the hearing, to which he advised that he wished to proceed. Both parties provided detailed written submissions and made oral submissions at hearing. There was a significant amount of written material tendered without objection which exceeded 2,000 folios. The respondents relied on a small amount of confidential evidence which the Tribunal dealt with in a confidential hearing, confidentiality orders having been previously made by the Tribunal (differently constituted) on 22 June 2023.

Confidential evidence

29. Detective Senior Constable Heise was affirmed and adopted his affidavit with a minor amendment concerning his employment status. FTB was aware of the existence of confidential evidence and that such evidence arose from this witness from the second respondent (the Commissioner of Police).

30. The evidence concerned FTB being a registrable person under the CPOR Act and this was clear from the open affidavit of this witness. In our view it is not necessary to provide any confidential set of reasons because the nature of this evidence was not such that it tipped the balance in respect of our conclusion on FTB’s application, nor did it have any significant bearing on the matters that we considered.

FTB’s evidence

31. In evidence in chief FTB adopted his affidavit of 5 July 2023.

32. In cross examination FTB was asked about his four children and ‘F’ who was the victim in the prosecuted matters. FTB maintained that he has a close relationship with all his children and sees them about once a month. The grandchildren who live out of Sydney visit FTB’s home about four or five times per annum.

33. FTB said that the parents of his grandchildren allow them to be alone with him but he choose not to be. One of FTB’s children (a son) is themselves on the Child Protection Register due to child pornography offences.

34. During cross examination FTB was questioned at some length about looking at ‘teenage pornography’. FTB said that he only looks at pornography of that nature which concerns 18 or 19 year old subjects. It was suggested to FTB that his somewhat blasé attitude to this matter means that he could well be viewing images of subjects under 18 years of age when he engages in his pornographic needs. FTB stated that the sites that he accesses are all well established sites with ‘millions of hits per week’.

35. It was suggested to FTB that images where the person was under 18 could look or appear to be 18 years of age. FTB indicated that based on his answers it was difficult to see the relevance of the question but did concede with the general proposition that a person who for example was actually only 15 years of age could appear to be 18 years of age. When asked if he would find such an image attractive FTB conceded that it was possible that he might find such an image attractive.

36. FTB indicated in his evidence under cross examination that in his view the ‘epitome of beauty’ is a person from late teenage years to their late twenties. FTB elaborated that at that age the skin, shape and lack of wrinkles were all criteria when seeking such an assessment of an image.

37. FTB was asked about his travel plans which were referred to at [15] of his affidavit of 5 July 2023. FTB referred to his regular travel to the USA and maintaining close relationships with friends and relatives, referring to five college friends remaining alive who he would like to see again. These friends are also of advanced age being 79-83 years old. FTB was asked whether any of these friends have teenage grandchildren. FTB said that it was possible as they would probably range in age from 5- 25 years.

38. FTB was asked about his half brother referred to at [19] of his affidavit discovered through DNA matching. FTB had not seen this person for 75 years since he was a child living in the USA. He confirmed that he had not explained that connection to the Police.

39. FTB was taken to pg. 6 of the respondent’s cross examination bundle (the bundle), and asked about a serious matter recorded there in the notification report. FTB said that he does not remember making any statement to the effect of admitting the serious matter that was recorded, only the lesser matter of ‘blowing a raspberry on the belly’. FTB said that whatever occurred was only affectionate and that there was no sexual intent and that the Department of Community Services (DOCs) accepted this explanation.

40. FTB was asked about two adult persons ‘D.U.’ and ‘K.S.’ FTB admitted having met these men in prison, He said that ‘D.U.’ is now deceased. FTB told the Tribunal that these men were convicted of similar offences to him he used to meet them after their release once or twice a year. He said that since ‘D.U.’s death he has not had any further contact with ‘K.S.’

41. FTB was asked about an organisation by the title of ‘NARSOL’. (National Association for Rational Sexual Offense Laws). He said that it is an organisation in the United States and denied that it was what is described at page 29 of the respondent’s bundle, being an entity and place (website) for registered sex offenders to connect and interact with each other and rationalise sexual offences against minors. FTB said that in essence it is a support group for US sex offenders and assists them with how to live within their registration requirements. FTB said that the organisation’s purpose is to keep people on ‘the straight and narrow’.

42. FTB told the hearing that he maintains his innocence and that is why he pleaded not guilty to all offences. The jury convicted him of six of the seven offences. He said that they accepted the evidence of the psychiatrist Dr Quadrio, a family member, and the general practitioner. With Dr ‘C’ (a non expert witness) FTB said that his approach was to obtain a particular outcome when giving the doctor information without having to lie. With his own expert Dr Seidler FTB said that the process of assessment was open and he was ‘not trying to achieve or obtain a particular outcome.’ It was found that the relationship between FTB and his daughter ‘F’ was ‘very close’ and has also described the relationship as that they were ‘inseparable’ with the conclusion that it was possible that boundaries could have been crossed over.

43. FTB admits that the conduct that he was found guilty of equates to an offence but denies that the conduct occurred in those terms. In respect of Dr Seidler’s report and the notation that FTB fantasises about late teenage girls, FTB said that he does not agree that his views relate to age inappropriate behaviour. FTB was asked whether his sex drive was (in his opinion) higher than that of most his age, to which he agreed that it was.

44. FTB was asked about an assessment for entry into the Cedar Cottage course for child sex offenders during their prison term. The Deputy Director of the program Mr P Chandra had conducted an assessment of FTB’s suitability for placement in the course and had interviewed FTB, his daughter ‘F’ and other family members.

45. At page 49 of the bundle in his report Mr Chandra records that there were reports and disclosures concerning other children in the family. FTB is recorded as having an offhand type of view to his behaviours and that it was of no great concern. We make these observations from the following passages recorded in the report:

He added that his family ‘now accept my attitude’ and that they ‘don’t try to justify my actions’. (FTB) promotes a picture of family members rallying around to accept his behaviour without necessarily condoning it.

When asked directly about what exactly is ‘the relationship’ that he says he had with ‘F’, (FTB) answered by saying, ‘I don’t know why I turned to ‘F;’. He then speculated that there were two ‘phases’. In the first phase he believes that there were frictions in his relationship with his wife and that ‘F’ was being affectionate towards him. He states these as possible reasons for his sexual conduct with ‘F’.

(FTB) says that the second phase was when ‘F’ had turned 16 she had ‘encouraged’ it. He described the ‘relationship’ as a mutual ‘love’, and if one was not aware of ‘F’s age when he began his sexual conduct towards her, it sounds like a description of a relationship between two adult lovers.

….

Throughout the interview (FTB) showed little remorse for what he had done. To the contrary, he appears to strongly believe that what he did to ‘F’ was not necessarily wrong in his eyes, nor should it be in ‘F’s. He perceives it as a mutual loving relationship and not as sexual assault perpetrated by a father on daughter from a young age to young adulthood.

(FTB) showed little appreciation of the impact of his conduct on ‘F’ or other members of her family. He does not appear to believe that he has caused any harm to ‘F’, let alone any other family member.

46. FTB said that Mr Chandra interpreted the matter to be a sexual relationship with ‘F’ whereas to his mind it was not.

47. FTB was also asked about his most recent overseas travel permission request which appears on the bundle at pages 31-37. At an entry on page 36 of the bundle FTB was asked and records:

6. What were the victims age’s their relationship to you and the offence behaviour? Also include details of online offences.

I was charged with acts of indecency (ages 5 or 6, 9 or 10) and carnal knowledge (age over 6) involving my daughter ‘F’. There was no claim of violence intimidation or force.

8. What factors do you think contributed to your offending? How will you manage these factors whilst overseas?

I have learned to be sure that I am not alone with any child or children. This is a strategy adopted by most professionals to avoid the opportunity for being accused or to offend. I was often alone with ’F’ and had ample opportunity to offend.

48. These matters were put to FTB in cross examination and whether he believed that such actions constituted inappropriate and intimidating behaviour. FTB agreed that a father having sex with a daughter of any age would be intimidating for the daughter.

49. The Tribunal put some questions to FTB consistent with its power under s 38 (1) of the NCAT Act. The questions concerned seeking to understand FTB’s position about his behaviours and offending generally in order to determine risk to children. We were somewhat unsure of FTB’s position that he had not committed any crime in respect of his conduct. Whether he had committed a crime was mainly relevant to him being on the Register. Other matters concerning his behaviour align more with determining current and future risk.

50. We specifically asked FTB whether he considered that his actions resulted in him committing a crime. FTB answered that his action would not constitute a crime in any circumstances. FTB elaborated that a crime is something that is against the law.

Evidence of Dr Seidler

51. In evidence in chief Dr Seidler adopted her report dated 28 February 2023.

52. The witness was taken to [96] of the report where matters to reduce FTB’s risk of offending are explored. The passage of time, FTB’s aging, 15 years in the community without sexual offending, a lack of physical coercion in the offending, lack of anti-social and psychotic presentations and a lack of history of his own child abuse or substance abuse amongst other matters listed the positive matters. Paragraph [97] listed factors which elevate FTB’s future risk of offending. A sex drive higher than for a man his age, the endorsement of age appropriate sexual interests (not involving children), the nature of the relationship (family) between victim and offender causing psychological concerns around FTB, the continued maintaining of innocence by FTB. The witness agreed that these factors elevate risk but that they need to be balanced against the factors set out at [96] of her report.

53. At [102] of her report the witness refers to there being no evidence of any ongoing risk. The witness clarified this as well as the contents of [103] by indicating that there was no evidence in the material before her of any ongoing risk and that referring to the literature the position being that once a person was offence free for over 10 years, risk assessments become of limited value as the risk is deemed to be low.

54. Reference was made to the witness referring to FTB’s denials and that at page 30 of her report reference is made to the fact that even though FTB denies any offending, due to the passage of time, functioning relationships and behaviour since, there is little reason to assume this denial is associated with risk in any tangible way.

55. In cross examination the witness was asked about FTB’s static risk factors and she clarified that these were actuarially or statistically based whereas the dynamic risk factors were determined on the basis of clinical judgement.

56. The witness said that she first dealt with FTB over the telephone in March 2007 where she agreed to treat him post release from custody. There was a two hour meeting on 18 December 2007 in preparation for his parole report. There were subsequently five sessions in 2008 and no further treatment by her.

57. The witness was taken to [41] of her report where she refers to FTB being disconnected with other persons engaged in anti-social culture. The witness was asked whether her assessment would be different if FTB had contact with sex offenders. The witness said that her assessment might change but only if she knew the nature and details of that contact.

58. At [47] reference was made to FTB’s children and their children and successful careers. The matter of FTB’s son being on the Register was raised and the witness was asked whether that would change her risk conclusions for FTB. The witness said that the son being on the Register was concerning but that it did not change her overall risk assessment.

Applicant’s submissions at hearing

59. FTB made brief oral submissions at the conclusion of the evidence and also provided written submissions. In oral submissions FTB referred to the sentencing Judge McGuire DCJ’s reference in sentencing remarks to the fact that he was ‘prepared to accept that there was no real prospect of his re-offending and that there was no reason to believe he will re-offend against any person’.

60. FTB also referred to the records that show that the prison psychologist (Ms M) stating that (FTB) ‘is not a predator, and does not offend against unknown victims’. He was referred to as a ‘low risk offender’ and ‘unlikely to offend again’. Reference was also made to the Robilliard (Psychologists) report of 2006 which referred to FTB’s ‘level of sexual offending risk being at ‘the lowest possible recordable percentile’.

61. FTB submitted that all professionals over the last two years had concluded that he was a low risk of re-offending or harming children. FTB referred to [69] of the only other Tribunal case dealing with the CPOR Act: DKP v Children’s Guardian [2018] NSWCATAD 303 where he referred to [69] of that case. In DKP the Tribunal stated:

69. We set out this context for the following reason. The term “risk of harm” or “risk of harm to children” or the statutory phrase as it appears in other legislation is not defined or otherwise extrapolated further in this Act or if it is the Tribunal is not aware of such a provision. The words are merely captured in s 16 where it says that “the person the subject of the proposed order does not pose a risk to the safety of children”. We infer that at the time any proposed order is made that is when the risk is measured or assessed, not their risk at the time of offending, and not specifically unless there is cogent evidence to indicate otherwise, a future risk. It seems unlikely that a person in the applicant’s position, if they did not pose a risk today, if that was the finding of the Tribunal, would for unexplained reasons pose a risk at some time in the future.

62. FTB submitted that as his evidence indicates that he is not a risk at present then he would not be considered a risk in the future. We agree that current risk is indicative of future risk, but as the Tribunal observed, such a risk might be ‘unlikely’ but the Tribunal in DKP put the matter no further. There was no finding (nor could there be) that future risk was not possible.

63. FTB in his oral submissions also referred to [76] of DKP where the Tribunal observed:

76. The applicant’s evidence as borne out by the lack of adverse material in the intervening years since his parole stands in his favour. That is that no matters of any significance have come to attention. There are matters concerning domestic violence, but we note those matters were in 1998, prior to the significant offending which places the applicant in the register.

64. We agree that there are no matters of extreme seriousness since and similar to FTB’s primary offending. There were two parole breaches and matters relating to non compliance with reporting requirements but these matters were considered minor by the Court and did not result in a further period of incarceration. The Police evidence does indicate some other matters of concern which are behaviours, not necessarily determined as offences or findings of ‘guilt’ which are all relevant to the question of risk.

65. In closing his oral submissions FTB referred to his dozen of trips overseas whereby there were no incidents therefore also contributing to a finding that FTB is a low risk of re-offending.

66. In his written submissions FTB covered all of the points made in his oral submission such as the testing results and assessments, as well as a conformity with the position in DKP.

67. FTB continued to refer to his conviction being based on the uncorroborated evidence of the complainant only and that in essence the evidence was circumstantial. Written submissions referred to aspects of the respondent’s submissions and that they should be contrasted with his own evidence. By way of example FTB referred to the respondent’s submission about the earlier matters concerning the younger daughter:

26. ‘Other relevant conduct includes the Applicant’s admitted touching and kissing of his younger daughter (not the victim) on her genital area in 1988’

FTB’s evidence on this point from his affidavit of 5 July 2023 at [22]

22. It is suggested that in 1988, I had admitted touching my daughter ‘T’. I don’t recall the questions and answers but I imagine that I may have kissed her or blown a ‘raspberry’ (which I do recall doing) between her belly button and above the groin. As I understand it ‘T’ has never made any allegation against me and my explanation was accepted by those investigating the matter. The investigation as I understand it, was at the behest of the complainant in my criminal matter.

68. FTB’s written submissions continue along what might be described as technical lines asserting his lack of any offending and the position that even when submitting to assessments his offending risk results are always considered low. Technical matters are raised in the submissions such as a lack of further treatment being based on the suggestion of clinicians.

68. Reference to consorting warnings being criticised as only a single warning instance is annexed to the evidence of not more than one warning. FTB submitted that his actions (which were adjudged to amount to consorting) were not ‘nefarious activities’ but providing support to another person (Mr ‘T’).

69. FTB in his submissions took issue with many of the inferences made by the respondents towards his evidence and was to an extent emphatic about what could be taken into account and what could not. His submissions stated the following:

Sexual interest in late teenage girls is no more than an interest, as proven by my offence-free life over the last 39 years at least. In addition, late teenage girls are not children and do not present as an issue in this matter.

By agreement and choice, I do not associate with any people on the register.

71. FTB closed his written submission by referencing the current restrictions on him and in essence the nub of his application. FTB submissions made reference to NSW Police misconstruing the test as ‘no risk’ rather than ‘low risk’. He submitted that he had taken dozens of trips overseas without incident. He also submitted that with the passage of time it would be illogical to find that he still remained a risk to children.

Respondent (Children’s Guardian’s) Submissions

72. In oral submissions at the conclusion of the evidence the Children’s Guardian submitted that Dr Seidler’s report referred to the attraction and interest in late teenage girls and very little interest in peer aged women.

73. Reference was made to FTB’s lack of insight and the position that FTB was somewhat cavalier in his responses and provided technical and rote answers. The suggestion being that he did not accept that his actions (where accepted) equated to actions of a sexual nature.

74. The respondent submitted that the case of BQF v Children’s Guardian [2015] NSWCATAD 225 where at [117]- [118] the Tribunal noted in respect of an application for an enabling order that the applicant was still in denial about his offending:

117. The disqualifying offence in this matter was a very serious one.

118. More than 40 years after the offence the applicant is continuing to deny and minimise the offence. He has continued since his arrest to blame the child victim and shows no genuine remorse. He has not accepted responsibility for his offence. There is no evidence that he has ever obtained expert advice or therapeutic assistance in relation to the risk that he may pose to the safety of children, which includes all persons under 18.

75. In addition the Children’s Guardian submitted that consistent with the case of FHV v Children’s Guardian [2023] NSWCATAD 246, there is a lack of concern about the offending behaviour, an excessive use of pornography and a failure to engage in further treatment. These matters were considered by the Tribunal to be significant having regard to the fact that the Tribunal must be satisfied that in the current matter FTB is not a risk. At [94] – [95] of FHV the Tribunal observed:

94. However, there are also a number of factors against the applicant. For example:

(1) While the applicant’s offending was not targeted towards children, the applicant was nevertheless indifferent to who witnessed his offending conduct. That is, his exhibitionistic behaviour could very easily have been seen by children as his offending occurred in public near a popular walkway which is open for use by everyone, including teenagers;

(2) The applicant’s lack of insight into the underlying cause of his offending conduct, which spans a period of three years – that cause being his extensive use of pornography in his paraphilic and exhibitionistic behaviours;

(3) There being a significant risk of further offending, without any psychologically or psychotherapeutically based treatment with a central ongoing aim of total abstinence from pornography access and a focus on social and sexual skills in real life sexual relationships; and

(4) The applicant’s lack of engagement with relevant treatment.

95. In our view, in this application, having regard to the paramount consideration in s 4 of the WWC Act, the factors against the applicant outweigh those that are in favour of the applicant. Hence, we are not satisfied that the applicant has, at the time of hearing, discharged his onus in rebutting the presumption that he poses a risk to the safety of children by reason of his disqualifying offence.

76. Reference was again made to DKP and the matter of when risk is being considered and assessed in respect of the CPOR Act. We note the submission about the matters raised at [69] of DKP is set out at [61] above.

77. In written submissions the Children’s Guardian submitted that the Tribunal cannot be satisfied that FTB does not pose a risk to the safety of children. As a result the Tribunal’s discretion to make the order does not arise. In the alternative, the Children’s Guardian submitted that if the Tribunal was satisfied that FTB did not pose a risk to children, then he had not established that the Tribunal should exercise their discretion to make the order under s 16(3A) of the CPOR Act.

78. The Children’s Guardian submitted that the proper construction of s 16 (3A) required the Tribunal to positively consider that FTB does not pose a risk to the safety of children. In this regard the starting position is that the Tribunal cannot make an order unless it is so satisfied and in those circumstances an onus is placed on FTB to positively establish that he is not a risk.

79. Reference was made to the above position and interpretation being consistent with comparative legislation in other jurisdictions. Sections 37 and 38 of the Child Sex Offenders Registration Act 2000 (SA) was referred to in written submissions.

CHILD SEX OFFENDERS REGISTRATION ACT 2006

37—Supreme Court may exempt certain registrable offenders

(1) This Division applies to a registrable offender who is required to continue to comply with the reporting obligations imposed by this Part for the remainder of his or her life.

(2) If—

(a) a period of 15 years has passed since he or she was last sentenced or released from government custody in respect of a registrable offence or a foreign registrable offence, whichever is later; and

(b) he or she did not become the subject of a life-long reporting period under a corresponding law whilst in a foreign jurisdiction before becoming the subject of such a period in South Australia; and

(c) he or she is not on parole in respect of a registrable offence,

the registrable offender may apply to the Supreme Court for an order suspending his or her reporting obligations.

38—Order for suspension

(1) On an application under section 37(2), the Supreme Court may make an order suspending the registrable offender's reporting obligations.

(2) The Court must not make the order unless it is satisfied that the registrable offender does not pose a risk to the safety and well-being of any child or children.

(3) In deciding whether to make the order, the Court must take into account—

(a) the seriousness of the registrable offender's registrable offences and foreign registrable offences; and

(b) the period of time since those offences were committed; and

(c) whether the registrable offender has ever been subject to a restraining order under section 99AA of the Summary Procedure Act 1921 ; and

(ca) whether the registrable offender has ever been subject to a declaration under Part 2A or an order under section 15A; and

(d) the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences, as at the time those offences were committed; and

(e) the registrable offender's present age; and

(f) the registrable offender's total criminal record; and

(g) any other matter the Court considers appropriate.

80. The Children’s Guardian made submissions that DKP at [74] referred to the CPOR Act not authorising any issue concerning the safety and well being of children over and above that of any other person or seek to supervise. The Children’s Guardian submitted that the CPOR Act does not contain mechanisms for supervising offenders and thus keeping children safe other than minimising the risk of harm by imposing reporting obligations in respect of relevant matters (including likely contact with children). The Tribunal notes that DKP was an ex-tempore decision.

81. The Children’s Guardian submitted that by enacting s 16 Parliament contemplated that some persons on the Register in some situations may cease to be a risk prior to the expiration of their reporting period consistent with DKP at [70].

70. There are two further observations we make, one is, that the legislature clearly is of the view that the Tribunal can decide that a person is or not a risk separate to the statutory provisions of the reporting period. In this regard we refer to the fact that in this instance we have found the applicant is obligated to report for a period of 15 years. Yet in 2018 we have been asked to decide his risk. The Act does not say that an applicant may apply for review of the extended reporting period at the conclusion of the substantive reporting period from a calendar perspective. The Act is silent on when a person can apply for review but presumably on the narrow jurisdiction given to this Tribunal the suspended and then extended period must have been applied. If no extended period was to be applied there would be nothing for this Tribunal to review, so in our view the legislature contemplated that this Tribunal could determine risk, notwithstanding the fact that by force of law for a period into the future an applicant is required to report and remain on the register.

71. The second observation we make is that the purpose of risk being assessed arising from reporting is somewhat more general than under the other legislation we have referred to, namely, the Child Protection (Working with Children) Act 2012.

82. The Children’s Guardian also noted in written submissions that the term ‘risk to safety of children’ is not defined in the Act however it is defined in related Acts such as the Child Protection (Working with Children) Act 2012 (the WWC Act). The WWC Act’s predecessor in law the Child Protection (Prohibited Employment) Act 1998 formed part of the reforms that introduced the Register and reporting obligations with the current CPOR Act. Consistent with enabling orders under s 28 of the WWC Act the Children’s Guardian submitted that in s 16 (3A) consideration the onus lies on the applicant to establish that they are not a risk.

83. The Children’s Guardian made significant submissions around FTB’s attitude to his offending and submitted that this was a significant reason as to why he posed a risk to the safety of children. Importantly the Children’s Guardian submitted that there was credible evidence following the offending behaviour that FTB disclosed his offences. The evidence of independent witnesses is referred to in the District Court sentencing remarks. Independent and professional witnesses refer to admissions of behaviours, which would constitute sexual offending against a child or a young adult family member.

84. We note that FTB appealed his criminal matters (unsuccessfully) through the Court of Criminal Appeal NSW and to a special leave application to the High Court of Australia.

85. The Children’s Guardian submitted that there is also evidence of his admissions in lay witness statements such as family members. The evidence indicates that FTB believed that his actions were appropriate, loving and not criminal in nature. He consistently denied any wrongdoing to both those assessing him as well as Police and Courts.

86. The Children’s Guardian referred to FTB’s ‘cavalier approach’ and lack of insight minimising what he describes of his actions as ‘touching a child’. The Children’s Guardian submitted that FTB’s refusal to engage in treatment means that he has taken no steps to mitigate his risk. His denials about offending add to his risk.

87. The Children’s Guardian also submitted that the open affidavit of Detective Senior Constable Heise provides evidence of instances whereby FTB was given consorting warnings. There was evidence of Notices being issued to FTB and another person on the Register. The Children’s Guardian submitted that it is not in dispute that prior to the issuing of the Notice and warning that FTB consorted with another registered offender.

88. Submissions were also made about FTB’s continued attraction and interest in ‘late teenaged females’. FTB’s own expert Dr Seidler opined that ‘his sexual interests are not age appropriate’. The Children’s Guardian submitted that the lack of treatment in this regard elevated his risk noting the age of his grandchildren.

89. The Children’s Guardian submitted that FTB’s own adult children consider him to be a risk and ensure that he does not have unsupervised access to their children. Reference was also made to the position that an expert report indicated a low risk of offending is not determinative of risk. Reference was made to DCZ v Children’s Guardian [2018] NSWCATAD 81 at 175-176.

175. …. The Tribunal also takes into account the assessment by Mr Bradley Jones that the Applicant poses a low risk.

176. Nevertheless, noting, as the Respondent submits, that the Applicant provided no evidence of any steps taken to address any issues relating to his behaviour, including his failure to consult a psychiatrist as he was required to do by the Orders to which he consented in the family law proceedings, the Tribunal finds that the Applicant poses a real and appreciable risk to the safety of children.

90. The Children’s Guardian submitted that notwithstanding the passage of time since the offending, the offences were extremely serious and FTB’s attitude to his offending, continued denial and lack of treatment, establish that the Tribunal could not be positively satisfied that he does not pose a risk to the safety of children.

Section 16 (5) considerations

91. The Tribunal is required to consider the following considerations as a minimum in determining whether an applicant provides a risk to the safety of children. Section 16(5) provides some limited guidance on mandatory considerations. The section says:

In deciding whether to make an order under this section, the Civil and Administrative Tribunal is to take the following matters into account:

(a)  the seriousness of the registrable person’s registrable offences and corresponding registrable offences,

92. FTB’s offending is on any assessment extremely serious. The seriousness of the offending must be considered in the context that it was a father offending against his daughter. In addition the offending occurred over a lengthy period of time. The sentencing Judge determined that FTB used his daughter to satisfy his sexual desires. In our view there is no utility in further detailing these matters as they have been set out in detail in the material before the Tribunal and were accessible to all parties for procedural fairness reasons. References to ‘abhorrent’, ‘sexual exploitation’ and ‘gross’ arise in His Honour’s description of the offending.

93. The matters involved a serious breach of trust and to the extent relevant are in our view far more serious (from a child safety perspective) than the relevant circumstances that arise in DKP.

(b)  the period of time since those offences were committed,

94. The last registrable offence occurred 39 years ago in 1984. FTB argued that that he had ceased ‘offending’ for 13 years prior to being charged in 1987. However the Tribunal notes that FTB was initially charged in 1990 but the matters did not proceed at that time.

(c)  the age of the registrable person, the age of the victims of those offences and the difference in age between the registrable person and the victims of those offences, as at the time those offences were committed,

95. FTB was between the ages of 31 and 41 years at the time of his offending in respect of the registrable offences. The difference in age between FTB and the victim ‘F’ is 25 years. Of significance in addition to these matters are the matters concerning the father / daughter relationship which we refer to above under (a).

(d)  the registrable person’s present age,

96. FTB was 80 years of age at the time of the hearing and is now 81 years of age.

(e)  the registrable person’s total criminal record,

97. The registrable matters are two counts of commit act of indecency on a person under 16 years, three counts of incest and one count of carnal knowledge.

98. FTB has other matters on his criminal record concerning his failure to comply with reporting obligations in 2015 where he was placed on a 12 month Bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. In July 2016 FTB was found guilty of breaching his Bond and failing to comply with reporting obligations. On appeal his conviction was quashed with a finding under s 10 of the Crimes (Sentencing Procedure) Act 1999 and a further nine month Bond imposed.

(f)  any other matter the Tribunal considers appropriate.

99. The Tribunal notes that the failures to comply with the reporting requirements and the issuing a consorting warning Notice are relevant matters when determining risk to the safety of children, having regard to the context of placing persons on the Register.

100. During a 15 year reporting period, and prior to the introduction of the 2017 amendments at Commonwealth level, FTB was able to spend significant periods of time overseas. FTB has spent over four years overseas mainly in jurisdictions that do not impose corresponding reporting obligations. If an order was granted it would relieve FTB from a period equating broadly to the time he was overseas and unsupervised and s 15 (3) of the CPOR Act applied.

(3) The period for which a registrable person’s reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (b) if, during the time in which the obligations are suspended, the registrable person—

(a) is travelling outside Australia for one month or more or is resident outside Australia, and

(b) is not required to report under any corresponding Act.

101. It is uncontroversial between the parties that the applicant is not a person who is required to report and remain on the Register in the absence of any order for the remainder of his life.

102. As we observed in DKP that the intention of the legislature was that persons should be under reporting supervisions for the relevant period commensurate with their level of offending. FTB like DKP sits in the middle criteria. A waiver of that statutory obligation only arises when there is no longer a risk. As the Tribunal observed in DKP at [46] and [47]:

46. In practical terms the question is when the applicant or any applicant who has reporting obligations travels overseas to a body that does not have reporting and supervision provisions under a commensurate treaty or piece of legislation then because in practice they cannot be supervised, their reporting obligations are suspended. That has the effect of staying the reporting obligations in that for want of a more legal phrase, time stops and when the reportee returns to the jurisdiction time begins to count once again.

47. These matters mean that in effect the person subject to reporting obligations is required to report and is under supervision envisaged by the Act for the total period that the legislature intended and in the absence of Parliamentary Hansard Second Reading Speeches we infer that this is the practical import of this division and we so find.

103. We note that but for FTB’s actions in travelling overseas on 15 occasions between July 2010 and March 2019 he would no longer be subject to reporting obligations and would not need to seek permission of NSW Police to engage in overseas travel. It is because of the provisions of s 15 (3) of the CPOR Act that FTB’s registration period will not expire until late 2026.

Consideration

104. The objects of this CPOR Act were inserted by legislative amendment. We know this because they are titled s 2A. The objects are:

“(a) To protect children from serious harm including physical and psychological harm caused by physical or sexual assault; and

(b) To ensure the early detection of offences by recidivist child sex offenders; and

(c) To monitor persons who are registrable persons; and

(d) To ensure that registrable persons comply with this Act.”

105. We have concerns about FTB’s non compliance with his reporting obligations notwithstanding the partial success of his appeals. These matters are in our view relevant for determining FTB’s credibility in the sense of complying with his statutory obligations as a registrable person designed to ensure that children are safe. They are considered in general terms in relation to the risk he might pose to the safety of children. In our view FTB’s statutory reporting obligations are relevant to managing his risk of recidivism and his risk to the safety of children. That is the ultimate purpose of the CPOR Act.

106. Whilst we make no adverse findings about the basis that FTB sought to remove himself from the jurisdiction (such as to evade or avoid supervision) he was absent for some 50 months or four years and two months out of a 15 year reporting period. We note that as a consequence for that lengthy period of time FTB was beyond supervision. That is the purpose of s 15 (3) of the CPOR Act to ensure that persons are under supervision whether they offend or not.

107. Having regard to the evidence and material before us, we remain concerned that FTB poses a risk to the safety of children. His absolute position that he has broadly done nothing wrong does little to establish insight into his past and potentially future behaviour.

108. We place significant weight on the independent and objective witnesses who recorded his disclosures both in the period prior to FTB being charged (Dr Quadrio) and Deputy Director Chandra’s observations during FTB’s period of incarceration. In our view it is open to us to conclude to the civil standard that the matters that these professionals recalled, are more likely than not to have occurred.

109. Neither professional was working with the other, the observations occurred at different times and in different contexts notwithstanding that they essentially concerned the same distressing and compelling material. The similarity in the two witnesses’ observations adds to the position that what they recorded is a statement of truth. We make this finding for the above reasons in the absence of those witnesses being called and their evidence tested.

110. In our view FTB’s denial, lack of understanding and failure to accept that essentially he did anything wrong, despite the significant volume of evidence to the contrary leads us to the conclusion that we cannot be satisfied that he does not pose a risk to the safety of children.

111. Whilst we accept Dr Seidler’s report we maintain that even with the low risk rating, the risk in our view is sufficient to prevent us making a finding that FTB does not pose a risk to the safety of children. Whilst we accept Dr Seidler’s professionalism we note that initially she was engaged in treating FTB, albeit some years prior at the time of his release, and more recently for these proceedings she was engaged to provide an independent assessment. We note that unlike clinicians, it is the Tribunal’s role to be the finder of fact in a matter such as this. We find that notwithstanding the balancing of the static and dynamic risk factors, the significant passage of time and the lack of any similar offending in the intervening period, we cannot be satisfied that FTB does not pose a risk to the safety of children.

112. We make this finding on the totality of the evidence, weighing up significantly the evidence about the offences and FTB’s attitude to those offences. Without making any diagnosis or factual finding we are concerned on the evidence before us, as to whether FTB holds the requisite insight and protective factors to enable him to not currently be considered a risk to the safety and well being of children. This test from the related legislation (the WWC Act) is grounded in FTB’s lack of understanding or acceptance that his behaviour (or similar behaviour) could constitute a risk of harm to a child.

113. We also note that his exhaustive appeals were unsuccessful and the evidence of the victim ‘F’ was to an extent corroborated by family and contemporaneous records acquired prior to charging.

114. In addition we note that FTB was considered unsuited to rehabilitation programs during his prison term and ceased any treatment as soon as his parole conditions allowed. We accept that FTB has a different view as to why he ceased treatment being that he was advised that further treatment was not necessary.

115. In addition, we note the evidence about FTB’s contact with others on the Register and that as a result of consorting Notices and authorised inspection visits FTB knows that his actions are being monitored by NSW Police.

116. We make no findings concerning FTB’s view that some of the Police actions are maliciously motivated and in bad faith. It is not our role to consider such matters even if there was evidence of same.

117. Based on the findings and observations that we have made above, it follows that FTB ‘s application to the Tribunal must fail.

118. Noting the provisions of s 16 (3A), we make the following orders:

1. Pursuant to s 16 (3A) and s 16 (5) of the Child Protection (Offenders Registration) Act 2000 we decline to make an order suspending FTB’s reporting period.

2. We decline to make any order under s 16 (11) of the Child Protection (Offenders Registration) Act 2000 shortening the period in which FTB may reapply to the Tribunal.

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

Registrar

Amendments

17 May 2024 - Italicised font removed from Legislation cited and cases cited on Coversheet.

Decision last updated: 17 May 2024