X v Commission for Children and Young People

[2001] NSWADT 130

CITATION:	X -v- Commission for Children and Young People [2001] NSWADT 130
DIVISION:	Community Services Division
PARTIES:	APPLICANT X RESPONDENT Commission for Children and Young People
FILE NUMBER:	014015
HEARING DATES:	06/06/2001
SUBMISSIONS CLOSED:	06/06/2001
DATE OF DECISION:	08/09/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:	G v J & H [2001] NSWIRComm 69
REPRESENTATION:	APPLICANT In person RESPONDENT M Adofaci, advocate
ORDERS:	1 The Child Protection (Prohibited Employment) Act 1998 does not apply to Mr X in relation to the offence of indecent assault and attempted indecent assault for which he was convicted on 24 May 1991

Introduction

1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the CP (PE) Act) is not to apply to Mr X in respect of the offence of indecent assault and attempted indecent assault for which he was convicted on 24 May 1991. Mr X is applying for a declaration that the CP (PE) Act does not apply to him so that he can engage in child related employment. He is particularly keen to continue umpiring children playing Australian Rules football.

2 On 1 May 2001 the Tribunal stayed the operation of a prohibition under s 9(6) of the CP(PE) Act pending further determination. The stay was made on certain conditions including that Mr X not engage in any child related employment other than voluntary employment as an Australian Rules football umpire for children under the age of 18 years.

3 In the Community Services Division of the Tribunal it is an offence to publish or broadcast the name of any person who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of: s 126(1) Administrative Decisions Tribunal Act 1997 (ADT Act).

4 Although s 126(2) of the ADT Act contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, I have decided, because of the sensitivity of the information in this case, not to publish the applicant's name and to delete any other information which could lead to his identification. In these reasons I refer to the applicant as "Mr X". The official copy of the orders provided to the parties includes the name of the applicant.

Legislative provisions

5 Subject to certain defences and transitional provisions, s 6(1) of the CP (PE) Act makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment.

6 A "prohibited person" is defined in s 5(1) of the Act. That sub-section states that:

For the purposes of this Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of this subsection.

7 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) of the CP (PE) Act. There is no dispute in this case that the offence of indecent assault for which Mr X was convicted on 24 May 1991, is a “serious sex offence” or that Mr X is a prohibited person.

8 By virtue of s 5(2) of the CP (PE) Act, a person is not a prohibited person in respect of an offence if the Tribunal makes an order under s 9 that the CP(PE) Act is not to apply to the person in respect of the offence. So far as is relevant to these proceedings, s 9 states that:

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.
(2) A relevant tribunal is:

(a) the Industrial Relations Commission, or
(b) the Administrative Decisions Tribunal.
(4) A relevant 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 or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(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,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.
(6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.
(7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.
(8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal.
(9) Orders under this section may be made subject to conditions.

9 The CP (PE) Act creates a presumption that a person convicted of certain offences poses a risk to the safety of children and should not be employed in “child related” employment. The onus is on the applicant to rebut this presumption by establishing that he does not pose a risk to the safety of children.

Evidence

10 The documentary evidence in this matter included:

· Mr X's application to the Tribunal;
· report of Jenny Howell, consulting psychologist, dated 10 May 2001 and supplementary report dated 30 May 2001;
· bundle of documents tendered by the Commission including criminal record and documents relating to criminal charges and prosecutions concerning Mr X;
· a letter from Mr X’s step daughter (and victim of the indecent assault) to the Tribunal dated 23 February 2001;
· letter from colleague in the football club; and
· transcript of proceedings before the Tribunal on 1 May 2001.

11 Mr X is 42 years old and has been in a relationship with his female partner for over ten years. They have one child of their own, aged 16 months. Mr X has also helped care for his partner’s two children both of whom are now adults.

12 Mr X has lived in the same town all his life. He has been in the same job for the last four years and is currently studying to obtain extra qualifications.

13 The original reason for Mr X seeking a declaration was that his application for a job with an Area Health Service in the financial/accounting area was unsuccessful because of his prohibited status. (It is not clear whether the proposed employment was “child related employment” as defined by the CP(PE) Act, but that is not a matter that is relevant to my determination of whether a declaration should be made.) In addition, Mr X said he wants to continue to umpire children playing Australian Rules football, an activity he has been involved in for over ten years.

14 Mr X gave evidence via telephone on 1 May and 6 June 2001. The offence which brings him before the Tribunal is indecent assault on an 8 year old child who is now his step-daughter. He had known the child since birth and was a close friend of the family. The police fact sheet states that at about 4 am Mr X went into the child’s room, woke her up, and told her she could sleep in her mother’s bed. Mr X went to the mother’s bed with the child. While there he rubbed his hand on the top of her leg. The child rolled over and he stopped. He then took hold of her hand and moved it towards his penis, so that two of her fingers touched his penis. She pulled her hand away. The child disclosed the incident in the morning and the police were contacted.

15 Mr X said that while his version of the events differs slightly from the child’s, he has to accept the child’s version because he cannot rely on his own memory. Mr X had consumed alcohol the previous afternoon from about 1 pm until the time he went to bed. Mr X said that he was “pretty well blind.”

16 Mr X was convicted of indecent assault (under age 10) and attempt indecent assault (under age 10) and sentenced to 60 hours of community service. The child, who is now 18 years old, wrote to the Tribunal saying, in part, that

Although (Mr X) does have one account of sexual assault charge, (which was put in place by myself) (it) was a result of alcohol abuse. I trust (Mr X) 100% and I feel safe and comfortable whenever I am in his presents. (sic) (Mr X) can also be trusted with small children.

17 Mr X said that the conviction scared him and that is why he went to Alcoholics Anonymous (AA). He says he has not had an alcoholic drink since the incident and has attended AA every week. He knows that alcohol is a major problem for him and has successfully stayed sober for the last 10 years.

18 Mr X has several other convictions which became the focus of concern throughout the hearing even though they are not “serious sex offences” under the CP (PE) Act. These offences included:

· 1972: break, enter and steal;
· 1978 two convictions for prescribed concentration of alcohol;
· 1979: two counts of assault;
· 1981: malicious injury;
· 1981: prescribed concentration of alcohol;
· 1986: assault female; and
· 1991: breach of Apprehended Violence Order.

19 Many of these offences involved violence. The two counts of assault in 1979 relate to an incident in Mr X’s home when he argued with his mother, tried to strangle her and threatened his sister with a knife. He admitted the offences at the time and said that he was having problems with alcohol. The conviction for “assault female” in 1986 occurred when he was living in a flat with two woman. He grabbed one of the women by the throat and tried to strangle her when she refused to allow him to continuing living at the flat.

20 In 1998 Mr X had been living with his partner and her daughter for about eight years. The daughter, who was then 15 years old, and her mother had argued and the daughter had left home. Mr X and his partner met with the daughter a few days later and insisted that she return home. The daughter refused and Mr X said he “snapped” and gave her a “backhander” on the side of her jaw. When the daughter tried to run away, Mr X pulled her by the hair. He said in evidence that “I grabbed hold of her and I shook the shit out of her and I said, ‘Wake up to yourself’”. The daughter did not want Mr X charged with assault but an interim Apprehended Violence Order (AVO) was issued.

21 Mr X explained his conduct to the Tribunal by saying that his wife was extremely upset over her daughter’s behaviour and he was frustrated with his step-daughter for treating her mother in that way.

22 At the request of the Commissioner for Children and Young People, Ms Howell, a registered psychologist, prepared a report and a supplementary report. The reports were based on the documents available to the Tribunal, two interviews with Mr X, and the administration of the Static-99 test and the Sex Offender Need Assessment Rating.
23 After recounting relevant aspects of Mr X’s past including education and employment history and involvement with alcohol, Ms Howell focused on Mr X’s criminal history and his perceptions of these offences. She also administered the Static-99 test which is an actuarial measure based on empirical factors found to be associated with sexual and violent recidivism. Ms Howell concluded that:

On this scale, Mr X falls within the medium-low risk category. In the sample used to construct the scale 19% of offenders fell within this category. Of those offenders in the normative population who scored in this range, .09% were re-convicted of a sexual offence within five years, and 0.16 within fifteen years.

24 Mr X’s score on this scale also took into account his convictions for non-sexual offences.

25 Ms Howell administered another test, the Sex Offender Need Assessment Rating (SONAR). This Rating takes into account current life circumstances, including intimacy deficits, social influences, attitudes, mood and opportunity to victims and gives an estimate of dynamic factors known to be associated with sexual recidivism. According to Ms Howell’s assessment, Mr X fell within the low range on this test. Ms Howell’s comment was that his score was “in keeping with his improved attitude and mood, and better management of anger, which is directly related to giving up alcohol as a strategy for handling life events.” In addition, Mr X and his partner are long term residents of their community with considerable ties through family, employment and sport. Ms Howell’s overall conclusion was that “Mr X does not pose a greater than average risk to children.”

26 Ms Howell commented that there were several factors mitigating against any risk of further child related offences. These include:

· stable employment,
· stable marriage and family life;
· community ties; and
· a 10 year abstinence from alcohol and regular attendance at AA.

27 When questioned by the respondent, Ms Howell differentiated between Mr X’s risk to children in terms of sexual assault or abuse and physical assault or abuse. In response to questions from Ms Adofaci, Ms Howell stated that given Mr X’s physical violence towards his step daughter in 1998, he posed a reasonably high risk to children in terms of physical violence. Ms Howell took into account that this act was committed at a time when Mr X was not using alcohol and was in a stable relationship with his partner. She agreed that neither of those factors was effective in eliminating the risk of physical violence.

28 Mr X’s response to this assessment was to explain that the 1998 incident reflected his frustration at the way in which his step daughter was treating her mother. He agrees in hindsight that his conduct did not help the situation and that it was not an appropriate response.

Applicant’s submissions

29 Mr X says that he has demonstrated that he is not a risk to the safety of children. Apart from the 1998 incident, all his convictions involved alcohol. He has not had a drink for 10 years and his weekly attendance at AA is a strong indication that he will not drink again. Mr X admits that he “wasn’t a nice person” when he drank but he is now sober and is able to control himself.

30 The 1998 incident resulted from frustration in a domestic situation. He wanted to support his wife in a situation where he thought his step daughter was in the wrong. He realises that his conduct was not appropriate and that it did not achieve anything. He says he would not have hit any other child.

31 Mr X said that he wants to continue to work in the finance industry where he would have minimal, if any, contact with children. In addition he wants to continue to umpire children’s football matches. He described the patience and dedication that is necessary to umpire children. He said children often abuse umpires when a decision is made against them. Mr X says he remains in control when he is umpiring and speaks calmly and firmly to the children. In the 10 years he has been umpiring, he has never resorted to violence.

Respondent’s submissions

32 The respondent opposed the granting of a declaration, arguing that while Mr X does not pose a risk to the safety of children in relation to sexual offences, he does pose a reasonably high risk in relation to physical assault offences. In the respondent’s view the words “the safety of children” in s 9(4) relates to “safety” in general, not just safety from sexual offences.

33 The respondent’s opposition to a declaration was based on evidence of Mr X’s “preparedness” to resort to physical violence in certain situations. Ms Adofaci submitted that Mr X would be likely to resort to violence if he engaged in child related employment because he would be faced with situations where he felt frustrated and unable to communicate in any other way. In her view, that situation could arise in the course of umpiring children’s football matches or in any other form of child related employment.

34 The mitigating factors referred to in paragraph 26 do not lessen the risk sufficiently to justify a declaration being made. The 1998 incident is an example of those factors failing to eliminate the risk.

Reasons and decision

35 I am satisfied that Mr X gave honest evidence to the Tribunal. He did not try to minimise the incidents he had been involved in or attribute blame to anyone else. He did say that alcohol was a factor in all his previous offences, except the 1998 incident. This is supported by the documentary evidence.

36 Section 9(5) sets out factors which the Tribunal must take into account in exercising its discretion under s 9(1). In Mr X’s case the respondent conceded that Mr X was not a risk to the safety of children in relation to sexual offences. Taking into account all the evidence, including the factors listed in s 9(5) I am satisfied that Mr X is not a risk to the safety of children in relation to sexual offences. The offences were indecent assault and attempt indecent assault. He was 32 years old at the time and the victim was 8 years old. Despite these factors which would tend to indicate that Mr X may pose a risk, there are many factors which, in combination, satisfy me that he is not a risk to the safety of children in relation to sexual offences. These factors include the following:

· these are the only offences for which Mr X has been convicted,
· he is very remorseful, he no longer drinks and attends AA regularly and is determined not to drink in the future,
· the victim has provided a written reference which says she feels safe and comfortable in Mr X’s presence; and
· an expert witness has formed the opinion that Mr X does not pose a greater than average risk to children.

37 The next issue to be considered is whether Mr X poses a risk to the physical safety of children. In G v J & H [2001] NSWIRComm 69 (11 April 2001) at [37] Kavanagh J analysed the words “pose a risk to the safety of children” as follows:

The Macquarie Dictionary 1991, 2nd Ed, defines "pose" as "an examination by putting a question"; defines "risk" as "an exposure to the chance of injury" or "a dangerous chance"; "safety" is defined as "freedom from injury or danger". The Commission must therefore examine and question whether the applicant in child-related employment gives to the children freedom from an exposure to the chance or dangerous chance of injury.

38 I accept this definition and the respondent’s submission that safety relates not only to safety from sexual offences but safety from physical or emotional injury of any kind.

39 The relevant evidence in relation to the question of whether Mr X poses a risk to the physical safety of children is as follows:

· he has a criminal record during the 1970s and 1980s which includes assaults in domestic situations and drinking offences; all these offences involved alcohol;
· he hit, shook and pulled his step daughter’s hair in 1998 when she was 15 years old; alcohol was not involved in this incident; Mr X says that he was frustrated, but realises in hindsight that his conduct was not appropriate;
· he denies any other incident of physical violence against a child in any context;
· he has been umpiring Australian Rules for 10 years without any adverse complaint about the treatment of children; and
· Ms Howell’s written evidence was that Mr X does not pose a greater than average risk to children, however in oral evidence she offered the opinion that Mr X poses a reasonably high risk of using physical violence against children.

40 In assessing Mr X’s risk to the safety of children, incidents during the 1970s and 1980s involving domestic violence against adults can be discounted. Those incidents occurred at a time when Mr X was affected by alcohol. Because Mr X has abstained from consuming alcohol for 10 years and has attended AA on a weekly basis, there is very little risk that he will drink again. Furthermore, none of these incidents involved children.

41 The 1998 incident was a significant offence in which Mr X lost control in a highly emotionally charged domestic situation. The respondent’s submission, based on this incident, is that Mr X could react in the same way again in the context of child related employment. In particular, the respondent submitted that Mr X could get frustrated with children who he was umpiring and resort to violence in such a situation.

42 Despite the respondent’s submission and Ms Howell’s opinion that Mr X poses a reasonably high risk of using physical violence against children, I am not satisfied that this is the case. Ms Howell’s oral evidence was not consistent with her written report which concluded that Mr X did not pose a greater than average risk to the safety of children. Her oral opinion was not based on a considered view, but was given after no more than a moment’s consideration in response to questions posed by the respondent. I prefer the considered evidence given in Ms Howell’s written report.

43 Mr X’s step daughter provided a reference which says, in part, that she trusts him 100% and feels safe and comfortable whenever she is with him. I accept her evidence. Mr X has not resorted to violence in 10 years of umpiring Australian Rules football nor has he ever committed an act of violence against a child, apart from the 1998 incident. Mr X now has some insight into the circumstances in which that incident occurred and realises that it was not appropriate.

44 Given my findings of fact, I consider, on the balance of probabilities, that Mr X does not pose a risk to the safety of children.

45 In these circumstances and taking into account the matters in s 9(5), I exercise my discretion in s 9(1) and declare that Mr X is not a prohibited person.

Orders

46 The Child Protection (Prohibited Employment) Act 1998 does not apply to Mr X in relation to the offence of indecent assault and attempted indecent assault for which he was convicted on 24 May 1991.

Pursuant to s 9(10) the Tribunal will notify the Commissioner of Police of the terms of this order.