(ii) is consistent with the best interests of a child who would be born as a result of the treatment procedure.

1. It is common ground that the only relevant principle referred to in section 5 of the ART Act is that in s 5(a), namely that:

"the welfare and interests of persons born or to be born as a result of treatment procedures are paramount."

1. Section 107 of the VCAT Act states that a question of law arising in a proceeding must be decided by a judicial Member or a Member who is a legal practitioner.
2. I therefore accept that the view of the majority in this case is that the true nature of the exercise of the discretion in s 15(3) involves an evaluation of the risk factors relating to the matters which gave rise to the presumption against treatment, rather than a more general enquiry.
3. Applying that approach, however, I disagree with the findings of the majority and conclude, for the reasons set out below, that it is not consistent with the best interests of a child who would be born as a result of the treatment procedure for a treatment procedure to be carried out on ABZ.
4. I therefore find there is a barrier to treatment for the reasons set out below.
5. Before addressing the issues referred to above, it is helpful to briefly outline the background to this matter before the Tribunal relating to the offending behaviour of ABY. It is common ground that at the time of his offending, ABY was a 29 year old man working as a teachers' aide and martial arts instructor at a special needs school, where the 16 year old victim of his offending, who had learning and behavioural difficulties, was his student, and under ABY's care, supervision and authority. In February 2008, subsequent to ABY's offending behaviour which involved amongst other things phone and text messages and photos that, according to the sentencing remarks of the judge, became "increasingly sexually explicit and included photos of your erect penis and the complainant's vagina",[89] ABY was arrested and interviewed. He was charged by the police with three counts of sexual penetration and four counts of wilfully committing an indecent act with a child aged 16 years who was under his care, supervision or authority, but the latter four counts of indecent assault were subsequently dropped. At his trial in January 2009, ABY pleaded guilty to three counts of sexual penetration involving oral penetration of the vagina, digital penetration of the vagina, and penile vaginal penetration. He was convicted as a serious sexual offender and sentenced to three years imprisonment, two years of which were suspended. His name was placed on the Sex Offenders Register for a period of 15 years, that is, until 2024. In January 2010, he was released from prison, with his suspended sentence due to expire in January 2012.
6. In July 2010, ABY and ABZ's application for entry to an IVF program was rejected due to ABY's criminal conviction having given rise to a presumption against treatment under the ART Act. They appealed this rejection to the Patient Review Panel. On 23 November 2010, the panel rejected their application on the basis that it "was not satisfied that the welfare of a child born to ABY would be protected", and determined that there was a barrier to treatment under the ART Act.
7. In December 2010, ABY and ABZ lodged an application for review with VCAT against the decision of the Patient Review Panel. The matter was heard by the Tribunal on 27 to 29 June 2011, and later submissions were made.

1. The Tribunal was greatly assisted in its deliberations by the expert evidence in respect of ABY's offending, and the risk of him reoffending:
   • A report by Mr Jeffrey Cummins, dated 22 January 2009. Mr Cummins is a consulting clinical and forensic psychologist who assessed ABY in December 2008 for the purpose of a plea hearing in the County Court in January 2009. A copy of Mr Cummins' report is set out at pages 55-61 of the Tribunal Book. Mr Cummins was not required for cross examination;
   • A report by Ms Alison Mynard, dated 15 February 2011, amended 15 March 2011. Ms Mynard is a clinical psychologist who submitted a report about ABY's psychological state for the purposes of this proceeding; and
   • A joint report by Professor Ogloff and Dr Sullivan, dated 18 June 2011. Professor James Ogloff, a clinical and forensic psychologist, and Dr Danny Sullivan, a consultant forensic psychiatrist, submitted a joint opinion for the purposes of this hearing. Their opinion was particularly sought on the risk ABY posed to any child born to him through the use of a treatment procedure and the risks of his reoffending against a child in his care.
2. On the basis of the evidence tendered by Mr Cummins, Ms Mynard, and Professor Ogloff and Dr Sullivan, I am satisfied, as was the majority, that ABY is not a paedophile or hebephile; and that ABY's risk of reoffending generally is low, including with respect to a biological child.
3. There are however a number of matters which lead me to come to a different conclusion, weighing the risk factors, from the majority. These include the circumstances of ABY's offending and their gravity, particularly the breach of trust; ABY's general defensiveness and minimisation of his offending behaviour; the inconsistencies and contradictions in his evidence, especially regarding his admission of guilt; his lack of victim empathy and remorse; his limited insight into his conduct; his failure to date to participate in a treatment program; and the recency of his offending along with a continuing pattern of contradictions, minimisation and evasiveness with respect to his offending.
4. I propose to address each of these in turn.

(a) The circumstances of ABY's offending and their gravity, particularly the breach of trust

1. ABY, at the time of his offending, was a 29 year old man who had been employed for 3½ years as a teacher's aide and martial arts instructor at a school catering for students - including the victim - with learning and behavioural difficulties. The victim was a student of ABY's, under his care, supervision and authority. She was a 16 year old girl, described in a neuropsychological report tendered to Mr Cummins "as demonstrating several significant cognitive disabilities at a mild to moderate level";[90] and in a psychological and neuropsychological report tendered to Professor Ogloff and Dr Sullivan as "in the borderline or low-average range of intellect ... [with] specific learning disabilities, particularly with language and reasoning abilities".[91]
2. In their report, Professor Ogloff and Dr Sullivan referred to ABY's offending in respect of the 16 year old victim, who had been one of his students for 12 months, which consisted of:

grooming, communication of sexually explicit pictures, arranging a meeting, feeling her breasts, digital penetration of her vagina with his fingers, oral sex with the victim and penis-in-vagina intercourse ending in ejaculation.[92]

1. Similarly, Mr Cummins was of the opinion, from reviewing the content of ABY's text messages with his victim, that ABY "was grooming her for some contact offending" - although Mr Cummins went on to say that in his opinion ABY would be "unlikely to be regarded, in a general sense, as a predatory offender."[93]
2. In sentencing ABY as a "serious sexual offender", the sentencing judge spoke to the gravity of ABY's offending in her Reasons for Sentence:

"It remains that you committed a gross breach of trust in offending in the way you did and that would have been understood by you even without the professional obligations which appropriate teacher training would have imposed on you."[94]

1. Further with respect to the gravity of ABY's offending behaviour and the sending of highly sexualised text messages, I note that such behaviour appears not to have been limited to the victim, but to have been extended to at least one other school student. When asked under-cross-examination whether he "sent these sort of text messages to males as well", ABY responded "Yeah" and when asked if such messages were sent "to other students ?", ABY responded "one was, yes ...[to XX]". When asked if he also "talked about ejaculating on [XX]" ABY responded that "I can't be exactly sure of what I said to him, what I've spoken to him about".[95] And when asked whether he said to [XX] that "[he] wanted to have sex with him as well ?", ABY responded that "I can't remember what I said". Asked if he communicated in this way with persons to whom he taught martial arts, ABY responded "Quite possibly".[96] And asked "Were you sending messages to [XX] saying love you baby ?", ABY responded "On the odd occasion".[97]

(b) ABY's defensiveness and minimisation of his offending behaviour

1. Since ABY was first interviewed by police in January 2008, a pattern of defensiveness, and of minimising his offending behaviour, has developed and continues.
2. Mr Cummins reported that when he assessed ABY in December 2008 and asked him to talk about his sexual offending, ABY proceeded "to talk about having formed a friendship or 'mate's relationship' with the victim. It was quickly obvious he was still having significant difficulty coming to terms with his offending behaviour and it was also obvious he was still using some of the defence mechanisms typically utilised by sexual offenders including minimalisation [sic], projection and rationalisation. It was also apparent he was still of the opinion he would not have offended in this manner unless he had been, to some extent, encouraged to do so by the victim." Mr Cummins concluded that this "clearly ... represents erroneous and inappropriate thinking on his behalf".[98]
3. In her report of 15 February 2011, Ms Mynard stated that "when ABY was confronted with the sexually natured text messages that he sent to the victim by the police, [ABY] minimized his intentions, repeatedly saying that 'it was just a joke, it was just in fun'. The fact that he minimized his intentions is very serious in the writer's opinion, given that it appears that [ABY] has developed a dismissive explanation for his behaviour, and this has solidified over time".[99]
4. In their report in June 2011, prepared some 3½ years after the offending behaviour occurred, Professor Ogloff and Dr Sullivan noted that "At police interview, ABY suggested that his student had commenced the sexualized interaction and he had told her it was inappropriate. Later in the interview, he suggested that he had been intoxicated. At police interview, he denied any sexual contact with the victim".[100]
5. Professor Ogloff and Dr Sullivan went on to say of ABY's response that "When we engaged in more provocative questioning, he became somewhat defensive, indicating that he felt that he was being accused of performing actions which he denied (ie, he denied that he had engaged in any inappropriate physical contact with the victim, including intercourse). Moreover, ABY was unable to explain why the text messaging with the victim, in particular, continued and became more inappropriate - other than saying that she initially initiated the texting and inappropriate exchange of photographs."[101] Further "He reported of the sexualised texting that it was 'a joke in the beginning'. He reported that when she initially sent a photograph of her naked breasts he responded with a photograph of his naked semi-erect penis. He described that he was at home at the time and had been drinking alcohol. He described the behaviour as 'stupid, irresponsible and inappropriate'."[102]
6. At the hearing ABY, under cross-examination, agreed that he was "just being silly with [the SMS] messages" he was exchanging with the victim, and that it "was just a sort of harmless fun".[103]
7. The evidence indicates that ABY continues to minimise his conduct and blame his victim. He appears not to have internalised or processed the wrongfulness of his conduct - and, as submitted by the Respondent, his propensity to indulge in immature dismissive explanations for his behaviour seems to have solidified and persisted to the present.

(c) Inconsistencies and contradictions in ABY's evidence, especially regarding his admission of guilt

1. In the more than three years since ABY's offending behaviour, there have been repeated inconsistencies and contradictions in ABY's accounts regarding his offending behaviour including, by his own admission, occasions when he has lied.
2. From the time ABY was interviewed and charged by the police - with the exception of his decision to plead guilty at his County Court trial and his assessment interview with Mr Cummins - ABY has denied any sexual contact with the victim, including at his committal hearing in the Magistrates' Court and as recently as his hearing with the Tribunal.
3. It is clear from Mr Cummins' report that in December 2008 ABY acknowledged to him in his assessment interviews that he had engaged in the offending behaviour with respect to his sexual contact with the victim. Mr Cummins states in his report that:

"I specifically asked him what he thought motivated his offending behaviour which, significantly, occurred shortly after he had returned from his honeymoon with his wife. He did become very anxious and agitated with this line of questioning and effectively then acknowledged he became sexually aroused in the presence of the victim and to the point where he engaged in the offending behaviour to which he is now pleading guilty. In this context he did acknowledge his sexual contact with the victim was inappropriate and illegal. He acknowledged he had breached the trust which was bestowed upon him in his capacity as a teacher/integration aide [and] he acknowledged that it was now inevitable he would be required to serve a jail sentence. ...

[ABY] now acknowledges he formed an inappropriate relationship with the victim. ... He acknowledges that he offended in this manner shortly after returning from his honeymoon. He stated at interview he became infatuated with the victim and he is of the opinion she, too, became infatuated with him."[104]

1. In his statement to the Tribunal, and at the hearing, however, ABY told the Tribunal that he had lied to Mr Cummins about engaging in the conduct constituting the offences to which he pleaded guilty, namely, sexual activity with the victim; and that he had pleaded guilty in the County Court for reasons including the financial cost of running a criminal trial, the stress and pressure and fear of losing their home, his fear that the jury would not believe him, and the legal advice he had received that he would receive a longer sentence (possibly 3-5 years) if he was found guilty at trial but that he would receive a lesser sentence if he pleaded guilty. At paragraph 16 of his statement, ABY stated that "I was not advised to plead guilty nor have said that I ever was. I was only advised as to likely sentence if I were to plead or be found guilty at trial. I based my decision to plead guilty on this advice."[105] This would appear to contradict his evidence at the first hearing of the Patient Review Panel, the Panel Decision stating that ABY said that he pleaded guilty "on legal advice in order to receive a lesser sentence".[106]
2. When asked at the hearing why he had lied to Mr Cummins, he replied that "I was instructed to make him [Mr Cummins] believe that I was guilty even though I didn't want to"[107] and that it was "Mr McQuillan" who instructed him to say this to Mr Cummins.[108]
3. In response to a further question "So what you are telling this Tribunal on oath is that a lawyer instructed you to tell lies to a psychologist who was going to give evidence at court and write a report ?", ABY replied "Yes". He stated that he understood that that was a very serious accusation to make.[109] When asked further why he chose to lie to Mr Cummins, ABY replied that it was "Because I was following my legal representative, their advice".[110] It was put to ABY that he was making up the conversation, and that Mr McQuillan had not given him such a direction or instruction, but ABY denied this proposition.
4. Mr McQuillan, ABY's counsel at the time of his trial, gave evidence regarding his conversations with ABY in relation to ABY's assessment by Mr Cummins. Mr McQuillan was asked whether he instructed or directed ABY to say certain things to Mr Cummins. He responded: "No, not directly". In response to further questions, Mr McQuillan told the Tribunal that subsequent to ABY having pleaded guilty in the County Court, ABY was due to attend an assessment session with Mr Cummins. About 20 minutes before the interview, ABY had phoned him (Mr McQuillan) and asked him "What if Mr Cummins doesn't believe me when I tell him I did it ?" Mr McQuillan stated that "I then effectively reiterated what I'd told him earlier, not in that conversation but earlier by way of advice, that ... he should only plead guilty if he tells me and my instructor ... and Mr Cummins ... that he did it. If he wasn't prepared to do that then he had to run the trial"[111] and that "there was no point in getting a psychological report" if he wasn't prepared to tell Mr Cummins that he did it.[112] Mr McQuillan denied telling ABY to lie to Mr Cummins about his offending.
5. I am satisfied that there remain serious questions as to the causes, nature and consequences of ABY's offending behaviour flowing from his repeated prevarication and evasiveness in responding to cross-examination about his offending behaviour. He repeated the response of "I can't remember" on over 20 occasions.[113] There were many inconsistencies in his evidence. He denied the contact offending despite his plea of guilty in the County Court and telling Mr Cummins that he had engaged in the offending behaviour with respect to his sexual contact with the victim, which he later countered in his statement that he had lied to Mr Cummins. These matters about ABY's conduct and demeanour and his lack of candour, raise questions about his capacity to exercise sound judgement

1. Mr Cummins, in his Psychological Report assessing ABY for the County Court concluded:

"In my opinion he is at a very early state in the process of developing victim empathy. He stated he regretted his offending behaviour. He made some comments indicative of remorse although in my opinion in order to develop comprehensive remorse he will require specific treatment such as that which is available through a sex offender program.

I am satisfied that at the time of offending he knew that his offending behaviour was wrong and inappropriate."[114]

1. In the County Court, the sentencing judge stated that ABY had acknowledged that his behaviour in communicating with the victim was inappropriate and that there were some indications of remorse. Her Honour concluded, however, that she could "not be satisfied that [ABY was] genuinely remorseful", and that specific treatment in the sex offender program as suggested by Mr Cummins was needed for ABY to develop genuine remorse.[115]
2. In his Statement for the hearing, ABY said that "I am truly ashamed that I sent sexually explicit text messages to the complainant and behaved the way that I did. I did not, however, engage in sexual activity with the complainant. I can only express remorse for the acts which I participated in." [(19)]
3. At the hearing, in response to a question regarding the effect he thought his conduct might have had on the victim, ABY replied that "I considered that. I hadn't come to a conclusion". When pressed to say if he'd given any consideration to how his conduct with the victim might have impacted on her as a student who had been in ABY's care, ABY responded "But I'm not sure how - how it would have. I don't understand".[116] When asked if he now accepted that the victim "was a vulnerable young person who was entrusted in your care ?", ABY responded "I find that - no, I find that's a hard question to answer".[117]
4. On the basis of the evidence above, I am satisfied that ABY still does not understand the level of vulnerability of his victim, nor the impact his conduct is likely to have had on her; nor appear to demonstrate genuine remorse.

1. In her Reasons for Sentence the sentencing judge suggested that her finding that ABY had not demonstrated genuine remorse might be linked to "a real lack of understanding of the meaning of your behaviour, as suggested by Mr Cummins, the psychologist who assessed you recently ... [who] considered that specific treatment in the sex offender program is needed in order for you to develop comprehensive remorse". The Judge concluded however that it was clear that ABY did understand at the time of the offending that what he did was wrong.[118]
2. In his report, Mr Cummins wrote that "In terms of insight, [ABY] acknowledged wrongdoing in sending text messages, denied contact offending against the victim and accepted responsibility for his behaviour and an awareness of its wrongfulness".[119]
3. The Patient Review Panel noted that ABY "presented at both hearings as immature and still lacking in any significant insight into his behaviour" which was "consistent with the trial judge's comparatively recent sentencing remarks".[120]
4. Ms Mynard reported that "[ABY] presented at some levels to be a mature and knowledgeable man however, at other levels, [he] lacked insight into the inappropriate nature of his text messaging relationship with this girl who was his student. [ABY] displayed an enormous degree of emotional immaturity into these matters in that he described his relationship with his students as 'mates' and that he was 'friends with everyone'. It appears that [ABY] saw his relationship with [the victim] as a peer, as if he was flirting with another woman".[121]
5. ABY's evidence at the hearing similarly reflected his continuing limited insight, as evidenced in many of his responses to cross-examination regarding his offending behaviour - "it was just harmless fun", that he "hadn't come to a conclusion" regarding the impact of his conduct on the victim, that "I can't remember" what was "going on in [my] mind which led [me] to behave in this way towards this child over these many days", the inconsistencies in his evidence with respect to his offending including his having "lied" to Mr Cummins and his denying of the contact offending, and his failure to date to participate in a treatment program "Well, it's not something ... I was required to do. I've just tried to move on from it".
6. On the basis of the above reports, in conjunction with the evidence given by ABY at the hearing, I am satisfied that ABY has displayed, and continues to display, limited insight into his offending behaviour; into the reasons why he entered the improper relationship with his victim, and the steps needed to avoid such situations in the future.

(f) ABY's failure, to date, to participate in a treatment program

1. All the experts are unanimous with respect to the importance of ABY participating in a treatment program for sexual offenders.
2. In the report he prepared in January 2009 for the County Court hearing, Mr Cummins stated that "In my opinion [ABY] should be required to participate in a sexual offender treatment program - which would be available to him either in custody or whilst on parole. In my opinion it would also be appropriate he be offered some one to one psychological treatment. He clearly requires further clinical assistance in terms of addressing issues of victim empathy, and the related issues of how the victim of this offending would have been adversely affected as a result of his offending behaviour".[122]
3. In their report in June 2011, prepared some 3½ years after the offending behaviour occurred, Professor Ogloff and Dr Sullivan observed that "ABY has not engaged in any offence-specific treatment ... It would nonetheless clearly be of benefit for ABY to undergo offence-specific treatment from a practitioner with expertise in dealing with sexual offending issues".[123] In their evidence at the second day of the hearing, Professor Ogloff and Dr Sullivan again spoke to the importance of ABY engaging in offence-specific treatment, and advised that they could advise on ABY accessing such treatment.
4. On the first day of the hearing, when questioned as to whether he had participated in the Sex Offender Program while in prison, ABY said he had not been able to access the program run in prison because he had been deemed to be at the lower end of the offender scale. The Tribunal was advised by Mr Candlish from Corrections Victoria that due to the duration of ABY's period in prison, he was not eligible to access the program when in prison.
5. In response to a further question as to what steps he had organised to participate in a program in the 18 months since he left prison, ABY said he had not taken any. When asked why in that 18 months he had taken no steps to organise his participation in any kind of sex offender treatment program, as recommended by Mr Cummins, ABY responded "Well, it's not something that ... I was required to do. I've just tried to move on from it".
6. It was not until her closing submissions that ABY's representative proffered an undertaking on behalf of ABY that he would undergo treatment of the type recommended by Professor Ogloff and Dr Sullivan (ie. 12 sessions with a suitably qualified health professional). The undertaking was proffered in the event the Tribunal was minded to impose a condition on a decision that there was no barrier to treating ABZ.[124]
7. I note that in their order setting aside the decision of the Patient Review Panel, the other Members of the panel have attached a condition that ABY complete 12 counselling sessions with a health professional to be nominated by Dr Sullivan.
8. However, the fact that ABY has only agreed to access such a treatment program at the last moment - "at the door of the court" as it were - despite the benefits of such a program first being recommended to him some 2½ years earlier in January 2009, in my mind goes to the earlier issues raised with respect to his limited insight, his minimising of his offending behaviour, and his lack of remorse and empathy with his victim as referred to in the expert reports.

(g) The recency of his offending along with a continuing pattern of contradictions, minimisation and evasiveness with respect to his conduct

1. Of particular significance and concern is the pattern of behaviour and conduct associated with and consequent to ABY's offending in January 2008 which continues up until the present time - as evidenced above with respect to his continuing defensiveness and minimisation of his behaviour, the inconsistencies and contradictions in his evidence regarding his admissions of guilt, his limited insight, his continuing lack of victim empathy and remorse, and his failure to date to participate in a treatment program.
2. In giving evidence at the hearing, the inconsistencies and contradictions in ABY's evidence, along with his evasiveness and lack of candour under cross-examination, left the impression that he still had something to hide, and that he could not therefore be trusted. This was evidenced when under cross-examination in response to repeated questions regarding the name he used when texting the victim, he responded "I can't remember", "I have no idea", "I can't say", "I don't know why I need to be dragged throughout a horrible ordeal that I've been through ... I'm confused why all this is being drudged up again", "It was just name calling".[125] Again in response to repeated questions regarding the nickname and initials "BC" that he used in his mobile telephone for his victim, he responded "I don't know", I cannot remember", "Of course ... [I'm telling the Tribunal the truth] that I can't remember", only responding after it was put directly to him, that "BC" referred to vagina.
3. His lack of candour and honesty, leaving the impression that he could not be trusted, was further evidenced at the hearing with respect to his preparedness to dissemble in his self-interest. At the commencement of the hearing, ABY told the Tribunal that he was now unemployed. He had been "asked to resign" by his employer the previous Saturday due to somebody having contacted his employer's head office and told them of his sex offence charges and that he had been in jail. As a consequence, his employer "did not want me working for them" any longer. ABY said that the reason his employer asked him to resign was because he had failed to fill in the employment form that employees are required to complete when commencing employment which would have asked about his police record. ABY said the form was never handed to him - but that "I knew I wouldn't have [got the job if I had filled in the form] because they asked for a police record check".[126] His failure to complete an employment form, knowing that to do so required him to advise of his criminal history, evidences a continuing lack of candour and of dissembling.
4. Linked to ABY's continuing evasiveness and lack of candour is the recency/currency of his offending and sentence. It is only 3½ years since the commission of, and his arrest for, serious sexual offences; 2½ years since his sentencing, as a serious sexual offender, to a 3 year term of imprisonment with 2 years suspended; a suspended sentence not due to expire until early 2012; and his name being on the Sex Offenders Register for a period of 15 years, until 2024.

1. I turn now to a consideration of the mitigating factors in this matter. Weighing the risk factors in ABY's case against the mitigating factors, I am not satisfied that the mitigating factors outweigh the risks.
2. It is acknowledged that there are a number of factors in ABY's favour. He has a very impressive and supportive wife, and strong family support along with the support of friends - factors which have been present from the time of the offence - and he is reported to have been of previously good character.
3. In this latter respect, I have taken into account that ABY has, on his own admission, and as documented in the expert reports and canvassed during the hearing, a significant past history of polysubstance abuse from his early teenage years, including cannabis, amphetamines and alcohol. With respect to his former abuse of illicit drugs, ABY told the Tribunal that he has abstained from such drugs for a period of some five years, an achievement that must be applauded. With respect to ABY's abuse of alcohol, in his report in January 2009 Mr Cummins stated that by ABY's own account "he drinks an excessive quantity of alcohol and in my opinion he would be diagnosed as suffering from Alcohol Dependence (DSM-IV-TR, code 303.90)".[127] Currently, ABY's alcohol use is reported to be moderate. Ms Mynard stated in her report that ABY had "demonstrated long term change regarding his past substance abuse"[128] and, at the hearing, that his current level of drinking (reported as about a slab a week) "wasn't problematic".[129] The maintenance of such lifestyle changes would clearly be a critically important factor going to risks to, and the welfare of, a child to be born as a result of assisted reproductive treatment.
4. Whilst the expert evidence is that there is a low risk of reoffending, there is nonetheless an identified risk which the Tribunal is effectively being asked to authorise as being an acceptable risk to a child to be born as a result of a treatment procedure. There is, however, no clear evidence that any of the mitigating factors put forward in ABY's favour could nullify this risk.
5. I conclude, therefore, for the reasons discussed earlier - including the gravity of his offence and the breach of trust it involved, ABY's defensiveness and minimisation of his behaviour, the inconsistencies and contradictions in his evidence, the absence of development of insight on his part since the offence, his continuing lack of victim empathy and remorse, and the absence to date of any successful participation in a treatment program - that the mitigating factors do not outweigh the risk to an unborn child.

ABY is a registered sex offender listed on Sex Offender Register for 15 years

1. If the exercise of the Tribunal's discretion were to involve a broader evaluation, the following matters would reinforce the conclusions I have reached.
2. Consequent to ABY being convicted as a serious sexual offender and sentenced to imprisonment, his name was placed on the Sex Offenders Register for a period of 15 years. Being on the Sex Offenders Register for 15 years, until 2024, of itself, acknowledges a risk.
3. Further, it is clear that ABY being registered on the Sex Offenders Register has implications for the welfare of any child to be born, as ABY is precluded by law from participation in a broad range of community activities and is therefore, as a parent, precluded from full participation in the life of the child to be born such as providing voluntary services to his child's school, kindergarten or childcare centre or coaching a sporting team.
4. The range of activities from which ABY is excluded by virtue of being registered on the Sex Offender Register includes - ABY being unable to work with children or obtain a working with children check that is required before a person can volunteer with sporting clubs or help in schools, kindergartens or playgroups; being banned from many occupations and associations thus restricting employment and recreational opportunities; and being required to advise police when he changes address or telephone number, goes on holiday or leaves Victoria, changes job, registers a vehicle, signs up for email or social media accounts.
5. If the proper interpretation is that the Tribunal has a broader discretion, then the fact of ABY being a registered sex offender on the Sex Offenders Register until 2024, that is for a further 12 years, has significant implications for the welfare of a child who would be born as a result of the treatment procedure - and indeed may go to questions of risk to the welfare and developmental needs of the child.

1. As stated, there are a number of matters which have led me to conclude that, weighing the risk factors, I come to different conclusions from the majority. These include, as discussed: the circumstances of ABY's offending and their gravity, particularly the breach of trust; ABY's general defensiveness and minimisation of his offending behaviour; the inconsistencies and contradictions in his evidence, especially regarding his admission of guilt; his lack of victim empathy and remorse; his limited insight into his conduct; his failure to date to participate in a treatment program; and the recency of his offending along with a continuing pattern of contradictions, minimisation and evasiveness with respect to his offending. I am not therefore satisfied that there is no risk to a child to be born as a result of a treatment procedure.
2. Accordingly, I am satisfied that the carrying out of a treatment procedure on ABZ is not consistent with the best interests of a child who would be born as a result of the treatment procedure.
3. I therefore find there is a barrier to treatment, and treatment should not proceed.

[1] See Pearce DC and RS Geddes, Statutory Interpretation in Australia (6th Edition, 2006) [6.8] citing Abbott v Minister for Lands [1895] AC 425.

[2] The first such principle is that 'the welfare and interests of any person born or to be born as a result of a treatment procedure are paramount': s 5(1)(a). Also see s 152 of the Repealed Act.

[4] See s 51 of the Victorian Civil and Administrative Tribunal Act 1998; McDonald v Guardianship and Administration Board and Another [1993] VicRp 36; [1993] 1 VR 521, 528-530 (Fullagar, Tadgell and JD Phillips JJ); Davidson v Victorian Institute of Teaching [2006] VSCA 193; (2006) 25 VAR 186.

[5] Section 45(1) of the Interpretation of Legislation Act 1984 (Vic).

[6] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 368 (Mason J).

[8] Second Reading Speech, Assisted Reproductive Treatment Bill, 10 September 2008, Attorney General Robert Hulls (Vic) 3451.

[9] R v Hunt, Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, 329 (Mason J); Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; Friends of Hinchinbrook Society Inc v Minister for Environment and Others (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; (2000) ATPR 41-742.

[10] In the Marriage of Kress [1976] FamCA 82; (1976) 13 ALR 309, 312 and 317 (Goldstein J); Barnett v Barnett (1973) 21 FLR 335, 348 (Bowen JA); In the Marriage of Smythe [1983] FamCA 27; (1983) 48 ALR 677, 685 (Evatt CJ and Asche SJ).

[11] Transcript of Proceedings, ABY & ABZ v Patient Review Panel (Victorian Civil and Administrative Tribunal, Ross J and Members Fabris and Harper, 27-29 June 2011) (Tn) 29 June 2011 p 18 lines 24-25.

[12] [1982] QB 1166.

[14] Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 [252] (Crennan J with Gleeson CJ, Gummow and Heydon JJ agreeing).

[15] A. Dickey, 'The best interests principle: Truth, ideology or mantra?' (2011) 85 Australian Law Journal 159, 163-1.

[16] [1955] HCA 27; (1955) 92 CLR 390, 397.

[17] Ibid as quoted in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby and Hayne JJ).

[18] Ross v R [1979] HCA 29; (1979) 141 CLR 432, 440 (Gibbs J).

[19] Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Final Report, (2007), 64.

[20] Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VicRp 48; [1987] VR 529, 547 (McGarvie J) citing Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198, 212 (Lord Wilberforce).

[21] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[23] [1938] HCA 34; (1938) 60 CLR 336, 361-362.

[24] Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 [123] (Branson J with French and Jacobson JJ agreeing [110]).

[25] [1965] HCA 46; (1965) 112 CLR 517, 521(Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ).

[26] [1992] HCA 66; (1992) 110 ALR 449.

[28] Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20 [65] (Branson J) and [108] (Kenny J); Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 [128] (Branson J with French and Jacobson JJ agreeing at [110]); Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287; (2009) 256 ALR 199; Morley v Australian Securities and Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140 [735] (Spigelman CJ, Beazley and Giles JJA); Australian Securities and Investments Commission v Healey [2011] FCA 717 [100]-[103] (Middleton J).

[29] See for example Cobaw Community Health Services v Christian Youth Camps Ltd & Anor [2010] VCAT 1613 [123] (Hampel J).

[30] Tn 26 June 2011 p 17 lines 12-23, p 18 lines 1-11 and p 24 lines 1-16.

[32] See s 34(1)(b)(i) of the Sex Offenders Registration Act 2004.

[33] See Reasons for Sentence (30 January 2009, County Court of Victoria) [15].

[35] Tn 28 June 2011 p 128 lines 1-6, p 132 lines 27-31 and p 133 lines 1-2.

[36] Professor J Ogloff and Dr D Sullivan, Conjoint Psychiatric and Psychological Report (In confidence) (18 June 2011) [77] - [78].

[37] Tn 28 June 2011 p 146 lines 15-25.

[38] Tn 29 June 2011 p 9 lines 12-31 and p 10 lines 1-12.

[40] Evidence of Dr Sullivan Tn 28 June 2011 p 136 lines 21-31, p 137 lines 1-11.

[41] See generally Respondent's Outline of Submissions (29 June 2011) [17]-[19].

[44] Tn 29 June 2011 p 42 lines 6-7 and 11-14.

[46] Applicants' Closing Submissions (29 June 2011) [7].

[48] Assessment Document p 3 (citations omitted).

[50] Karen S Budd, 'Assessing parenting capacity in a child welfare context' (2005) Children and Youth Services Review 27, 429-444, 436.

[53] Michaela C Heinze and Thomas Grisso, 'Review of instruments assessing parenting competencies used in child custody evaluations' (1996) Behavioural Sciences and the Law, 14, 293-313, 310; cited in the Assessment Document p 12.

[55] Tn 28 June 2011 p 144 lines 28-31 and p 145 lines 1-10.

[56] Tn 28 June 2011 p 144 at lines 20-21.

[58] Tn 28 June 2011 p 144 at lines 20-21.

[59] Report of Mr Jeffrey Cummins (22 January 2009) TB 58.

[61] ABY's evidence Tn 27 June 2011 p 84 lines 12-13; there is no challenge to ABY's evidence in this regard: see Tn 29 June 2011 p 34 lines 4-14.

[64] See generally Tn 29 June 2011 pp 37-40.

[65] Tn 29 June 2011 p 38 lines 7-10; also see pp 39-40.

[66] Professor J Ogloff and Dr D Sullivan, Conjoint Psychiatric and Psychological Report (In confidence) (18 June 2011) [66].

[67] Evidence of Professor Ogloff. Tn 28 June 2011 p 128 lines 26-31, p 129 and p 130 lines 1-29.

[73] Tn 28 June 2011 p 126 lines 23-31 and p 127 lines 1-4.

[75] As define in s 67 of the Sex Offenders Registration Act 2006

[78] Respondent's written submissions, 15 July 2011 [5].

[79] Email from the Respondent's solicitor to the President's Associate, 18 July 2011.

[80] Respondent written submissions of 15 July 2011 [2].

[81] Tn 29 June 2011,p 8 lines 26-31, p 9 and p 10 lines 1-3.

[82] Respondent written submissions of 15 July 2011 [8].

[83] See paragraph [151] above; Tn 28 June 2011 p 142 lines 29-31 per Professor Ogloff.

[85] Tn 28 June 2011 p 139 lines 14-17.

[86] Respondent's written submissions, 15 July 2011 [9].

[87] Tn 28 June 2011, p 136 lines 25-31 and p 137 lines 1-4.

[89] PARA 4, Reasons for Sentence, TB 912

[90] Dr Vowels, quoted in Mr J Cummins' Psychological Report: Private and Confidential, pg 1, TB 55

[94] Reasons for Sentence, 30 January 2009, County Court of Victoria [13]

[108] TN 42, lines 13-20, 27 June 2011

[110] TN 44, lines 11-12, 27 June 2011

[111] TN 116, line 9 and TN 117, lines 11-18, 28 June 2011

[112] TN 120, lines 16-18, 28 June 2011

[124] TN 9, lines 12-31 and 10 lines 1-12, 29 June 2011

[125] TN 50, lines 2 ff and 51, line 24

[126] TN 33, lines 19-24, 27 June 2011