ZM v Commission for Children and Young People
[2007] NSWADT 148
•20 July 2007
CITATION: ZM v Commission for Children and Young People [2007] NSWADT 148 DIVISION: Community Services Division PARTIES: APPLICANT
ZM
RESPONDENT
Commission for Children and Young PeopleFILE NUMBER: 064022 HEARING DATES: 6 March 2007 SUBMISSIONS CLOSED: 6 March 2007
DATE OF DECISION:
20 July 2007BEFORE: Britton A - Deputy President CATCHWORDS: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998
Children and Young Persons (Care and Protection) Act 1998
Commission for Children and Young People Act 1998
Crimes Act 1900
Interpretation Act 1987CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949
R v Commission for Children and Young People [2002] NSWIR Comm 101
SB v Commission for Children and Young People [2007] NSWIRComm 61
TZ v Commission for Children and Young People [2006] NSWADT 229REPRESENTATION: APPLICANT
RESPONDENT
J Lekkas, solicitor
D Ward, barristerORDERS: The Commission for Children and Young People Act 1998 is not to apply to the applicant in respect of the offences (2) of indecent assault for which he was convicted on 4 August 1995.
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, ZM, has applied to the Administrative Decisions Tribunal for an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (the CPPE Act). By the operation of s 5 of that Act, ZM is a ‘prohibited person’ having committed a ‘serious sex offence’, namely the offence of indecent assault and therefore, unless the order he seeks is granted, it is an offence for him to apply for, undertake or remain in ‘child-related employment’.
2 ZM has a four-year-old son with his partner, Ms A. Ms A is a foster carer (aka ‘authorised carer’, see s 137 of the Children and Young Persons (Care and Protection) Act 1998) and in that capacity has the care of two children. The three children live with Ms A. ZM does not live with Ms A, but is involved in caring for the children and providing financial support. He regularly stays overnight.
3 Late last year officers of the Department of Community Services (DoCS) advised Ms A, that ZM’s ‘prohibited person’ status was a matter of concern and threatened the ongoing viability of the placement of foster children in her care.
4 The reason ZM has decided to make an application under the CPPE Act is so he can continue to play a role in the care of the children. He advised the Tribunal that if his application is successful he will apply to become an ‘authorised carer’.
5 On 20 December 2006 stay orders were made which in effect permitted ZM to continue to care for Ms A’s foster children until his substantive application was determined.
6 The respondent neither consents to, nor opposes, the application.
7 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 by the pseudonym ‘ZM’ and his partner, as ‘Ms A’.
Applicable legislation
8 The timing of ZM’s application raises the question of the applicable legislation. The application was made on 13 December 2006 and a stay order granted on 21 December 2006.
9 When ZM’s application was lodged with the Tribunal the governing legislation was the CPPE Act. That Act was repealed by s 5 (1) of the Commission for Children and Young People Amendment Act 2005 (the Amendment Act) with effect from 2 January 2007.
10 Section 52A of the Commission for Children and Young People Act 1998 (the Commission Act) provides that Schedule 3 of that Act operates in respect of savings and transitional arrangements.
11 Clause 9 of Schedule 3 of the Commission Act picks up orders or declarations made under the CPPE Act and continues them in force, deeming them to have been made under Division 2 of Part 7 of the Commission Act.
12 Clause 10 of the Schedule provides that s 33M of the Commission Act applies to review of orders made under the repealed CPPE Act and in force at the time of the commencement of the amendment. Section 33M provides that the Commission may apply to the Tribunal to revoke or vary an order made by the Commission or the Tribunal and gives the Tribunal jurisdiction and power to vary or revoke the orders. It also enables the Tribunal to consider fresh evidence, to make orders subject to conditions, provides that the Tribunal may not award costs and that appeals on questions of law may be made to the Supreme Court.
13 Clause 11 of Schedule 3 is a general savings provision. It states that anything of a kind required or permitted to be done pursuant to a corresponding provision of the repealed CPPE Act and that was still in effect immediately before the commencement of Pt 7, Division 2 of the amended Commission Act is picked up and continues in effect by operation as if Part 7, Division 2 had been in force when it was done and as if it had been done pursuant to the corresponding provision of Part 7, Division 2 of the Commission Act.
14 The respondent submits that the application should be dealt with pursuant to the provisions of the CPPE Act. After the close of submissions, Counsel for the respondent helpfully drew to my attention a decision of Deputy President Sams of the Industrial Relations Commission: SB v Commission for Children and Young People [2007] NSWIRComm 61. I do not quibble with the correctness of Sams DP’s decision however, in my view, it is distinguishable on its own facts. In that case, s 33G of the Commission Act, a new amendment, had disentitled persons convicted of specified offences (murder of a child; sexual intercourse with a child; production of child pornography; or incitement or conspiracy to commit an offence of one or more of those types) from applying for a declaration by the Commission, the Industrial Relations Commission or the Tribunal. Sams DP, relying on the very fair and proper submissions of counsel for the Commission, applied ss 30(1)(c) and 30(1) (e) of the Interpretation Act 1987 in finding that there had been no intention on Parliament’s part of making s 33G retrospective in effect.
15 Section 30 of the Interpretation Act, in effect, provides that, unless there is an express or clearly implied intention on the part of Parliament to make new legislation retrospective, it will not have that effect, especially where to do so may adversely affect the rights, privileges, obligations or liabilities acquired, accrued or incurred by persons under the repealed or amended legislation, or their rights to investigate and litigate such rights and obligations.
16 That is not the case here. Whether this application proceeds under the old or new legislation makes no material difference. There appears to be no adverse retrospective effect for the applicant if the matter proceeds pursuant to the new legislation. If there is, it has not been pointed out to the Tribunal.
17 If I am incorrect in taking this view of the applicant’s position and he would suffer detriment or injustice as a result of the matter being dealt with under the new legislation, I would adopt the position taken by the Industrial Relations Commission.
18 That said, however, considering the combined effects of the Amendment Act and Clauses 9 to 11 of Schedule 3, it appears to me that the applicable legislation now is the Commission Act rather than the CPPE Act. This appears to be the case because clause 11, in particular, deems anything done or permitted to be done under the CPPE Act at the time of the repeal of that Act and the commencement of amendments to the Commission is deemed to have been done pursuant to the amendments, which correspond with the repealed provision(s) of the CPPE Act.
Relevant legislative provisions
19 ‘Child related employment’ is defined to include any employment that primarily involves direct contact with children where that contact is not directly supervised and includes employment involving fostering or other child care (s 33 of the Commission Act).
20 Section 33I(1) of the Commission Act provides that on the application of a prohibited person, a relevant tribunal may make an order declaring that this Division is not to apply to the person in respect of a specified offence.
21 The starting point in determining whether an application made under s 33I is to be granted, is s 33J(1), which provides that the Tribunal is not to make an order on a review application (an application made under s 33I) unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children. Section 33J(2) provides that it is to be presumed that the applicant poses a risk to the safety of children, unless the applicant proves to the contrary. Section 33J(3) recreates the provisions of s 9(5) of the CPPE Act. It provides that in deciding whether or not to make an order the 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 period of time since those offences were committed,
(c) the age of the person at the time those offences were committed,
(d) the age of each victim of the offences at the time they were committed,
(e) the difference in age between the prohibited person and each such victim,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the prohibited person’s present age,
(h) the seriousness of the prohibited person’s total criminal record,
(i) such other matters as the Commission or tribunal considers relevant.
23 In determining a review application the paramount consideration is the safety and welfare of children and, in particular, protecting them from child abuse: s 32.
Risk to children
24 The test set out in s 33J(1) of the Commission Act is similar, but not identical to the corresponding provision in the CCPE Act, i.e. s 9(4). The CCPE Act did not expressly address the issue of onus but rather required the applicant to show to the satisfaction of a Tribunal that on all the relevant material he or she did not pose a danger to the safety of children. In contrast s 33J(2) of the Commission Act, provides that there is a rebuttable presumption that the applicant is a risk to the safety of children, unless he or she proves to the contrary. The provision places the onus on the applicant to prove that he or she does not constitute a risk to children. The class of matters the Tribunal is now required to have regard to in applying the relevant test has been expanded to include whether the applicant knew, or could reasonably have known, that the victim was a child. This of course will only be relevant where the victim of the index offence was a child.
25 Section 33J(2) of the Commission Act has not as far as I am aware, been considered by a superior court. While great care should be exercised in applying those decisions, which considered the corresponding test in now repealed legislation, nevertheless they provide some guidance in applying s 33J(1).
26 The meaning of the word ‘risk’, for the purpose of s 9(4) of the CPPE Act was considered by Young CJ (in Equity) 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:
- ‘[N]ot 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].)
Section 33J of the Commission Act matters
28 ZM is 34 years of age. He is in full-time employment and works up to six days per week. That work does not involve dealing with children.
29 In 1995 after entering a guilty plea, ZM was convicted by the Katoomba Local Court on two counts of ‘indecent assault’ under s 61 L of the Crimes Act 1900, (the index offences). The two charges arise out of the one incident, namely the indecent assault of a 20-year-old woman. ZM was 22 years of age when the offences were committed.
30 In respect to the first count ZM was sentenced to 400 hours community service and placed under the supervision of the probation and parole service. In respect of the second, sentence was deferred on condition that ZM was of good behaviour for a period of four years.
31 In 1994 ZM was found guilty of the offence of ’malicious damage’ which was dismissed under s 556 A of the Crimes Act. That offence involved damage to property.
Expert Evidence
32 Tendered in these proceedings were two reports prepared by clinical psychologist, Dianne Starkey, dated 9 November 2006 and 14 December 2006, respectively. They were prepared at the request of DoCS following an abuse in care disclosure concerning Ms A’s foster children.
33 In her first report Ms Starkey recorded that the children had not disclosed any concerns about ZM except that one child indicated during testing on the ‘Family Relations test’, that Ms A, ZM and the boy’s biological father (who had previously been found to have abused the child) ‘all punished him [the boy] too much’.
34 She recorded that ZM denied hurting any of the children. On his account the only form of discipline he or Ms A used was to place the child in a corner or to remove their toys for a short period.
35 Ms Starkey concluded that ‘there was no clear evidence of particular risk factors in relation to [ZM’s] involvement with the children’. In her view if his self-report was accurate, ZM provided a reasonable role model for the children.
36 After receipt of Ms Starkey’s first report, DoCS asked her to comment on the significance, if any, of ZM’s convictions for indecent assault, which he had not disclosed in the course of the initial assessment. In Ms Starkey’s view the indecent assault convictions, of themselves, did not indicate that Ms A’s foster children were at risk of sexual abuse from ZM. She based that conclusion on the circumstances surrounding the index offences, namely: the passage of time since their commission, the absence of any evidence of repeat offending and the age of the victim. Nevertheless she thought it prudent that a further assessment be undertaken to assess the risk of any further reoffending. She believed that if that assessment revealed the risk to be low, it would be in the children’s best interests to continue to have contact with ZM.
37 That assessment was undertaken by psychologist, Dr Christopher Lennings, at the request of the respondent. A report prepared by Dr Lennings dated 23 February 2007 was tendered in these proceedings.
38 Dr Lennings employed a combination of actuarial and clinical assessment tools to assess ZM’s risk of reoffending. Employing STATIC-99 — an authoritative actuarial tool used to predict recidivism rates among known sex offenders by examining static risk variables (eg offender’s age, offending history) — ZM scored one out of a possible ten, placing him in the group of sex offenders with the lowest risk level of recidivism. According to Dr Lennings, it is predicted, on the basis of the results of STATIC-99, that 6.5% of that sub-group will reoffend within 20 years. Dr Lennings pointed out that while these results were favourable to ZM, STATIC-99 does not identify, or assist in identifying, whether ZM is likely to fall within the 6.5 % of offenders within that sub-group who are statistically likely to reoffend.
39 Dr Lennings found that the findings on actuarial assessment were broadly consistent with those on structured clinical assessment. For the purpose of the latter he examined, among other things, dynamic risk factors, such as: employment status, suicide or homicidal behaviour, remorse and denial. He thought it relevant that ZM did not present with a history of ‘sexual self-soothing or manipulative or violent behaviours’.
40 Dr Lennings thought aspects of ZM’s personality, such as a propensity to take risks, could be cause for concern if coupled with anti-social beliefs or attitudes. The absence of any evidence of such beliefs together with a history of good impulse control led Dr Lennings to conclude that that aspect of ZM’s personality was unlikely to place children at risk.
41 In Dr Lennings’ view the index offences probably occurred as a ‘result of a difficult interpersonal situation in which [ZM] misread signals that were occurring in that interpersonal context’. (The victim had been a friend of ZM.) Dr Lennings found no indications of sexual deviancy per se, and none of any paedophilic interest.
42 Dr Lennings pointed out that the risk of recidivism must be assessed having regard to the opportunity to offend. He pointed out, if ZM’s application was granted, he would have ready access to young and vulnerable children. Despite this ‘high opportunity cost’ Dr Lennings concluded that there was no significant risk that ZM would sexually abuse the children.
43 While cautious on commenting on the risk ZM posed of physically harming children, Dr Lennings thought ZM ‘present[ed] with a low risk of engaging in violence’.
Allegations of abuse in care
44 Tendered in these proceedings were documents produced by DoCS, in answer to a notice to produce, issued by the respondent under s 14A of the Commission Act. They contain two, possibly three allegations, apparently made by Ms A’s then nine year old foster son that he had been:
- Thrown through swing doors by ZM and pushed down the stairs.
Punched in the stomach by his ‘father’.
Hit across the face by Ms A and ZM.
46 Sometime after the disclosure was made about the boy being hit, the boy clarified in interview with DoCS, that someone other than ZM had hit him. It is not entirely clear who made the initial disclosure but there is some evidence to indicate that it may not have been the boy.
47 ZM gave evidence about these allegations. He denied having harmed any of the children in Ms A’s care, or indeed any child. He claimed that he had never been interviewed or questioned by anyone from DoCS about these allegations or any other matter.
Character evidence
48 Tendered in these proceedings were a number of character references in support of ZM. These include a note from Ms A’s teenage granddaughter who has known ZM for seven years and calls him ‘Pop’. She wrote that ZM is a ‘happy, friendly, caring and loving person who everybody likes to be around…has time for everyone if they need a hand or somebody to talk to’.
49 Friends who have known ZM for over ten years also provided testimonials. They wrote ‘[ZM’s] values, morals and ethics are such that he is a wonderful role model for the younger generation’. They stated they had no concerns about leaving their children, aged nine, seven and four, in ZM’s care.
Findings and Conclusions
50 By the operation of s 33J(2) of the Commission Act ZM is presumed to pose a risk to the safety of children, unless he proves to the contrary. The issue therefore to be determined is whether on the Briginshaw standard ZM has established that he no longer poses a risk to the safety of children.
51 The index offences are the sole evidence of any inappropriate conduct by ZM of a sexual nature. Of themselves, in my view, they do not indicate that ZM might pose a risk to the sexual safety of children, for the reasons advanced by Ms Starkey and Dr Lennings, that is: the passage of time since the offending conduct; the absence of any evidence of repeat conduct; the closeness in age between ZM and his victim; and ZM’s relative youth at the time.
52 There is nothing in the comprehensive history taken by Dr Lennings to suggest that ZM has any prurient interest in persons under the age of 18, nor is there any other evidence to suggest that this might be the case. Dr Lennings considered it relevant that over the years ZM has formed a number of age-appropriate relationships with women.
53 The expert evidence supports a finding that ZM does not present a real or material risk of reoffending. Employing actuarial and clinical assessment tools, Dr Lennings concluded that his risk of reoffending was low and further, there was no significant risk that ZM might sexually abuse the children in Ms A’s care.
54 There has been no suggestion that ZM has sexually abused any of the children residing with Ms A with whom he has had regular unsupervised contact over an extended period. This is consistent with the character evidence given by ZM’s long-standing friends who indicated they had no concerns with leaving their children in his care.
55 I am satisfied having regard to all the evidence that ZM does not pose a risk to the sexual safety of children. There is no evidence and nor has it been suggested that he might pose a risk to the lives of children.
56 In TZ v Commission for Children and Young People [2006] NSWADT 229 I considered the meaning of the words ‘safety to children’ in the context of s 9(4) of the CPPE Act. After examining that legislation and its interrelationship with the Child Protection (Offenders Registration) Act 2000, I concluded [at 32] that the test in s 9(4) did not extend to ‘the vast range of possible physical harms that adults may inflict on children but the limited range of risks posed by an applicant in respect of possible sexual harm to children or danger to their lives’.
57 My preliminary view is that the words ‘safety to children’ in the context of s 33J(1) of the Commission Act are to be given a broader meaning and encompass the physical and psychological safety of children. I therefore proceed to consider whether ZM has discharged the evidentiary onus on that basis.
58 The only evidence that ZM might have placed any children at risk of physical violence is the material contained in the DoCS’ documents referred to at paragraph [44] above. Care must be exercised in making findings based on incomplete material. What can be discerned from that material is that an assessment of harm was conducted by DoCS and the allegations as they relate to ZM, were found not to be substantiated. This, coupled with the male child’s retraction; the character evidence provided by Ms A’s teenage grandchild and ZM’s own evidence, leads me to conclude that these allegations do not provide a basis to find that ZM might pose a risk to the physical safety of children.
59 It is not enough for ZM to point to the absence of firm evidence that he has not physically harmed children; he bears the onus of proving that he does not pose a risk to their safety. In the absence of better evidence it is not possible to exclude the possibility that ZM might have physically harmed the children in Ms A’s. Having regard to all the evidence I am satisfied that he has not done so and does not pose a risk to the physical or psychological safety of children.
60 Being satisfied that ZM does not pose a risk to the safety of children I have decided to grant him an application under s 33I(1) of the Commission Act.
Orders
- The Commission for Children and Young People Act 1998 is not to apply to the applicant in respect of the offences (2) of indecent assault for which he was convicted on 4 August 1995.
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