VM v Commission for Children and Young People

[2006] NSWADT 285

CITATION:	VM v Commission for Children and Young People [2006] NSWADT 285
DIVISION:	Community Services Division
PARTIES:	APPLICANT VM RESPONDENT Commission for Children and Young People
FILE NUMBER:	064003
HEARING DATES:	21/08/2006
SUBMISSIONS CLOSED:	08/21/2006
DATE OF DECISION:	10/03/2006
BEFORE:	Britton A - Judicial Member
CATCHWORDS:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101
REPRESENTATION:	APPLICANT In person RESPONDENT L Dive, barrister
ORDERS:	Application is dismissed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


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

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 The Applicant applies for an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (Child Protection Act), having been convicted of a ‘serious sex offence’ as defined by the Act, namely one count of ‘carnal knowledge’. By the operation of s 5 of the Child Protection Act, the Applicant is a ‘prohibited person’ and it is an offence for him to apply for, undertake or remain in ‘child-related employment’.

2 The Applicant gave as the reason for making this application his desire to pursue a career as a counsellor, for which he has recently qualified. The Respondent opposes this application.

3 In these reasons, because of the sensitivity of this matter, I have decided not to provide any details that could identify the Applicant or anyone referred to in the proceedings other than the experts. The Applicant is referred to in these reasons by the pseudonym ‘VM’ and his daughter, ‘the Child’.

Relevant legislative provisions

4 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection Act is not to apply to him or her. Section 9(1) provides that, on application from a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply to him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9).

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

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

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person’s total criminal record,

(f) such other matters as the tribunal considers relevant.

Risk to children

6 The Applicant carries the onus, on the Briginshaw standard, that he is not a risk to children. The meaning of the word ‘risk’, for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on,

‘…not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.’ ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].)
7 Young J held at [42] that ‘risk’ in the context of s 9(4) meant “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child”. That test is now binding on the Tribunal.

8 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission that it was not permissible to impose conditions in order to lift the applicant over the risk threshold. His Honour said that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an applicant ‘who would otherwise pose some risk to children into an applicant who does not pose a real unacceptable risk to children’: para [46].

The index offence

9 The Applicant is 50 years old.

10 In 1973 he was convicted of the charge of ‘carnal knowledge’ (s 70 of the Crimes Act 1900). He entered a plea of not guilty. At the time of the offence he was 16 years of age. The victim was a 15-year-old girl. The Applicant was released on probation until the age of 18 years on the condition that he was of good behaviour and accepted the supervision and guidance of the officers of the Department of Child Welfare.

11 There was no evidence of any violence or absence of consent.

Criminal History

12 The Respondent tendered a copy of the Applicant’s criminal history. It records 13 convictions. Of those about a half were committed when the Applicant was a juvenile. Bar the index offence none are for offences of a sexual nature. Six involve violence, some of a serious nature the most serious of which appears to be the conviction in 1983 for ‘robbery in company with personal violence’. The most recent conviction was in 1995 for the breach of a fine option order.

History following index offence

13 A review of the Applicant’s history since the index offence reveals that until the mid to late nineties he was, what psychologist, Dr Christopher Lennings described, as an ‘extraordinarily dysfunctional person’ (see par. [13]). He had a long history of alcohol abuse coupled with violence and an unstable employment record. He had been involved in a succession of domestic relationships and on his account was the biological father to four children. Most spent their childhood in foster carer.

14 The commencement of work in a local soup kitchen in 1998 seems to have been a turning point in the Applicant’s life. He worked there on a regular basis sometimes up to seven days per week until commencing work in a welfare officer type role about two years ago. On all accounts the Applicant made an extremely valuable contribution to the work of the kitchen. Tendered in these proceedings was a testimonial from the President of the organisation that runs the Kitchen who spoke of the Applicant’s commitment, diligence and compassion.

15 In October 2004 the Applicant was diagnosed as suffering from liver disease and has not consumed alcohol since that time.

16 In 2003 the Applicant met his current partner, Mrs VM with whom he now lives, with her two teenage children. Both report the relationship to be a loving and supportive one. She has a stable employment record. There is no evidence to indicate that Ms VM was other than as she presented in these proceedings - a loving and responsible mother and a person of great integrity.

Placement of daughter with the Applicant

17 In September 2005 the Applicant’s eleven year old biological daughter (‘the Child’) was placed in his care. Before that she had lived in a succession of foster care placements in Queensland.

18 It is common ground that when the Child came to live with the Applicant she had a number of developmental and psychological problems. These include among other things problems with toileting and a failure to attend to matters of personal hygiene.

19 The Applicant tendered in these proceedings an ‘Observation Report’ prepared by Yvonne Ashton a Clinical Counsellor with the Department of Child Safety (Qld). The purpose of that report was to assess the suitability of the Applicant and his partner to care for the Child.

20 The report was prepared following a day spent by Ms Ashton observing the Child in situ with the Applicant and his family. Ms Ashton recorded that the home environment was loving and caring; the Applicant and his partner were responsive and attentive to the Child’s needs; the relationship between the Child and Ms VM was a ‘relaxed and natural one’; the child interacted freely with Ms VM’s two children and showed no evidence of being, or feeling, left out. Ms Ashton observed Ms VM deal with the Child’s apparently long-standing problem of soiling her underwear with great sensitivity. She wrote that the bond between the Child and the Applicant was, ‘protective, loving appropriate and educational’ and, that there were ‘no factors within the family dynamics that would pose a risk to [the Child]’…My visit to the home was relaxed, comfortable, and I found the home to be a child friendly environment…I found no hidden agendas in the relationship [between the Applicant and the Child] at all’.

21 She recommended that the Applicant and Ms VM be approved as ‘relative carers’.

Allegation of sexual assault upon the Applicant’s daughter

22 In May 2006, the Child was removed by officers of the NSW Department of Community Services following a disclosure that the Applicant had touched the Child on the vagina. The Applicant said that shortly after the removal he was informed in general terms of the nature of the allegation but did not learn of the details of the allegation until these proceedings. He has, at all times denied any allegations of improper conduct involving the Child, as has Ms VM.

23 Tendered in these proceedings were various documents produced by DoCS under direction. These included a document headed ‘Secondary Assessment Stage 2’. It recorded:

Subject child disclosed to her friend and then adults at school that she was being sexually abused by her natural father.

A JIRT [Joint Investigation Response Team] interview has been undertaken … and full disclosures by the child were made. This report has been substantiated.

The father has denied the allegation to the DoCS worker and declined to be interviewed by the Police. This matter will not be proceeding in Criminal Court and the child will return to Qld…

The natural father and stepmother both stated that this child was a chronic liar and furnished letters stating the same. The letters were written prior to the father knowing what the allegations were.

24 Mention was made in that report of a transcript of the JIRT interview being provided to DoCS. No document that fits that description was produced in these proceedings.

25 The documents produced by DoCS also include a ten page hand-written document headed, ‘Community Services Centre child and Family Program’. The document does not identify the author of these notes. It is dated 24 May 2006 and appears to be a record of interview with the Child. It refers to ‘yukky touches …down between the legs…by Dad …after school before step-mother and [step siblings] came home’. The document also records that the conduct had been ‘happening for the last year’ and that Dad also gave ‘weird kisses-sloppy on lips-tries pushing his tongue in my mouth’.

26 The Applicant and his wife have not been formally interviewed about the allegations.

27 Also tendered in these proceedings was a report prepared by a counsellor who the Child had attended for counselling on a regular basis between November 2005 and May 2006. (The counsellor’s name is not used in these reasons as it may disclose the identify of the Applicant and/or the Child.) The Counsellor wrote that the Applicant and his family had been extremely supportive of the Child and helped her adjust to her new community and that she was impressed with their awareness of the Child’s need to develop a sense of ‘security and confidence’.

28 She went on to write that she had been pleased with the Child’s progress. She reported that she had seen no evidence of the allegation made against the Applicant. She said she found the Applicant to be ‘honest and respectful and dedicated to his purpose in his dealings with me, and … loving and caring toward his family’.

29 Tendered by the Applicant was a letter dated 2 June 2006 he had written to the Department of Child Safety. In it he wrote that it was ‘[l]ike someone had died’ and that he was at ‘[a] loss to understand why [the Child] had acted as she did. He speculated that it might have been because ‘[s]he really hated herself’.

30 In a letter dated 4 June 2006 (apparently to DoCS) Ms VM asked rhetorically that if, the Applicant had as alleged, touched the Child inappropriately, why had she not told her, or someone else such as the Counsellor or someone at her school. She also wrote that the Child’s allegation was implausible given the time frame in which the offending conduct was alleged to have occurred. She explained that the Child caught the bus home from school and arrived home just after 4.10 pm. By that time her children (who were in secondary school) were already home. She arrived home from work not long after this, between 5.15 and 5.30 pm. She speculated that the reason the allegation might have been made was because the Child had used it as a ploy to engineer a return to the relative freedom she had enjoyed with her previous foster mother.

31 In these proceedings Ms VM gave evidence that she had not seen a scintilla of evidence to indicate that the Child had been sexually abused or mistreated in any way by the Applicant. She said the Child had experienced some difficulties settling into her new home but by April 2006 things had started to settle down.

32 She said the day the conduct was alleged to have occurred (or the last occasion it was alleged to have occurred) was a Friday when her own children had gone to spend the weekend with their natural father. She said she arrived home no later than 5.20 pm on that day. She thought in retrospect, the Child’s behaviour immediately before that weekend suggests that she might have been ‘put out’ that her step siblings were having a weekend away.

33 She said her own children had never reported any thing that gave her any reason for concern about the Applicant. She was ‘absolutely sure’ that her teenage daughter who is nearly 13 would have reported any untoward conduct.

Other allegations of sexual abuse

34 Tendered in these proceedings were a number of documents produced under direction which the Respondent contends indicate that more than one allegation of sexual abuse has been made against the Applicant.

35 Allegation One A ‘Report on Investigation’ apparently made by an officer of the Department of Children’s Services (Qld) recorded that the Applicant’s then six year old daughter disclosed, in May 1987, that ‘[Applicant’s first name] had touched her on the private parts...’ Shortly after this the child was medically examined. The examining doctor reported finding that the girl had been sexually interfered with. The doctor also recorded that the girl told her that ‘two step-fathers had touched her on the private parts on one occasion each’.

36 Allegation Two On 10 April 1987 the Royal Children's Hospital in Queensland recorded that ‘sexual acting out of [girl aged seven] suggests exposure to adult sexual activity’.

37 Allegation Three A hand-written case note by caseworker ‘C Ryall’ dated 24 August 1994, stated: ‘Returned p/c to ...(foster parent), who informed me that [Child the subject of Allegation Two, then aged 15] had made some allegations re: father... alleges that her father ‘went to bed with her and has had sex with her’. Child alleges this happened when she was living with dad recently.’

38 The Applicant denies all allegations. There is no material in the voluminous documents produced by the relevant government agencies to refute the Applicant’s claim that none of these allegations had been raised with him before these proceedings. On his account:

He denied living with the child mentioned in Allegation One when that allegation was made. On his account he had left her mother a number of years earlier. He thought that the person referred to in that allegation was most probably the child’s foster father at the time who had the same first name as he did.

In respect to the Applicant’s biological daughter who is the subject of Allegations Two and Three, the Applicant claimed he had only lived with her for a short period, namely 1978 to 1981 and was not living with her or her mother at the time the allegations were made. In addition he claimed that he had have never lived in the small town in rural Queensland referred to in Allegation Two.

Expert evidence

39 The Applicant was interviewed and assessed by clinical psychologist, Dr Christopher Lennings, at the request of the Respondent. A report prepared by Dr Lennings, dated 20 May 2006 has been tendered in these proceedings, and in addition, he gave oral evidence. It is to be noted that the report was prepared before the disclosure was made by the Child in May of this year.

40 Dr Lennings employed a number of strategies to assess risk. Applying STATIC-99, an actuarial test used to predict recidivism rates among sex offenders he found that the Applicant fell within the medium –low range. He thought however that STATIC 99 might overstate risk, in this case and considered that this method pf assessment was not particularly reliable in assessing the risk of recidivism where the offenders only sexual offence had been committed as a child.

41 Applying the ‘HCR-20’, a test using static and dynamic factors to assess the risk of future violent offending, the Applicant, according to Dr Lennings, posed a moderate to low risk. He noted that this finding was largely dependent on ‘recent changes’ in the Applicant’s life and that the issue was ‘[o]ne of assessing the extent to which the changes he reports are likely to be maintained’.

42 Using ‘RSV 20’ another actuarial test that utilises ‘dynamic risk’ factors -i.e. those variables that can be moderated by treatment or supervision, Dr Lennings identified some ‘risk loadings’ reported by the Applicant:

History of relationships difficulty

Prior history of severe alcoholism

History of violence associated with his alcohol use.

Employment difficulties as a younger man.

43 Having regard to the results of these tests together with his own clinical findings, Dr Lennings concluded that the Applicant now presented a low risk of sexual reoffending and a low to moderate risk of ant violent offence. He concluded that if the Applicant ‘continues his current trajectory it seems his risk will remain low’. He saw three changes in the Applicant’s life that were critical to that assessment: abstinence from alcohol, age- accompanied by less impulsivity and greater maturity; and the stable relationship with Ms VM.

44 He recommended that should an exemption be considered it would be prudent to put in place some protective measures such as informing the employer of the Applicant’s past and requiring that he be subject to some supervision.

Findings and conclusions

45 The key issue to be determined is whether the Applicant poses a real and appreciable risk to children and, if so, whether that risk can be reduced to one of no material significance by imposing appropriate conditions. The Applicant bears the onus of demonstrating that he poses no appreciable risk to children.

46 The index offence was committed when he was 16 years old and the girl in question 15 years old. It has all the appearance of precocious teenage sex and none of the indicators of a long-term propensity to abuse children. The fact that the Applicant has not been charged, let alone convicted, of any further offences against children tends to bear out that impression. Significantly, he and the victim were close in age at the time and it is over 30 years since he committed the offence.

47 These matters are important in assessing the degree of risk, if any, the Applicant now poses to children. The underlying assumption in the legislation is that the commission of a sexual offence, especially against a child victim, gives rise to a presumption that the offender may have a propensity towards abuse of children. In my view, the index offence does not demonstrate such a propensity in this case. It appears to have been a one-off event.

48 The Applicant has undertaken a radical change in his life for the better. That evidence appears to be indisputable and is compelling. He has rehabilitated himself in terms of his drinking and found new purpose in life through community work and a stable and loving relationship.

49 The allegations of sexual abuse of children are, of course, troubling but are very opaque. Not only does the Applicant deny the allegations but has explanations which, if true, contradict the claims altogether. Apart from the bare allegations themselves, there appears to be little corroborative evidence to support the contention that the Applicant has abused children. The investigations of those complaints did not result in (or have not yet led to) charges being laid. That may be because the Applicant’s explanations were accepted by the investigators or because the investigations were incomplete or because the available evidence was considered, at the end of the investigations, to be insufficient to provide reasonable prospects of conviction. It is impossible to say which.

50 Nevertheless, I must naturally be concerned by the fact that four allegations of sexual conduct have been made. If all four allegations are untrue, it is an odd coincidence that four separate complaints have been made alleging sexual assault by children with whom the Applicant has had close contact.

51 There is a possibility that the Applicant is telling the truth about the allegation made by the Child. Equally it is possible that he was not the person referred to in the three allegations mentioned above. However while the index offence can carry little weight now as an indicator of a propensity to abuse children; and, while I am impressed by the Applicant’s courageous rehabilitation, he bears the burden of proving he constitutes no material risk to children. The fact that one child has alleged serious sexual misconduct, and two other children have possibly identified him as having assaulted them, is a significant hurdle for him in making the application.

52 The legislation is protective of children. While there are evidentiary questions hanging over each of the allegations, the coincidence that four complaints have been made is too much to overlook in this instance. I cannot, therefore, be satisfied to the requisite standard that the Applicant does not pose a real and appreciable risk of harm to children. The allegations, taken together, suggest that the Applicant poses an unacceptable degree of risk to children with whom he has intimate contact.

53 It may be that further investigation and better evidence than was presented, would completely exculpate the Applicant of those allegations, but, on the material presented to me I am compelled to dismiss the application.