ANE v NSW Commission for Children and Young People

NCAT Administrative and Equal Opportunity|2013-07-31

Introduction 1In these reasons for decision, the applicant is referred to by the pseudonym ANE (see section 126 of the Administrative Decisions Tribunal Act 1997 (ADT Act)). 2ANE has made an application to the Administrative Decision Tribunal seeking an order under section 33I of the Commission for Children and Young People Act 1998 (the Commission Act) declaring that Division 2 of Part 7 of that Act is not to apply to him in respect of an offence of which he was convicted, in the Local Court of New South Wales, on 1 October 1986. The offence for which ANE was convicted was indecent assault of a person under the age of 16 years, contrary to subs 61E(1) of the Crimes Act 1900, as it applied at that time. The offence occurred in March 1986. 3At the time ANE lodged his application with the Administrative Decisions Tribunal, the relevant legislation was Part 7 of the Commission Act. That Part was repealed on 15 June 2013, by cl 6 of Schedule 4.2 of the Child Protection (Working with Children) Act 2012. That Act brought into operation a more comprehensive scheme for regulating those who work with children. ANE's conviction would bring him under the new scheme, however, due to the transition provisions in cl 6 of Schedule 1 of the Child Protection (Working with Children) Regulation 2013, ANE's application continues to be determined under the provisions of Part 7 of the Commission Act (see cl 1 of Schedule 3 of the Act which provides that the regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Act). 4Since the hearing of this application, the Administrative Decisions Tribunal was abolished, on 1 January 2014, on the establishment of the NSW Civil and Administrative Tribunal (see ss 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 No 2). By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 No 2, these proceedings are now proceedings before the NSW Civil and Administrative Tribunal (NCAT) and the provisions of the Commission Act continue to apply. 5For the purposes of this application, the offence, of which ANE was convicted, is referred to as the 'index offence', as it is the offence that brings ANE within the terms of the Commission Act. 6As a consequence of the index offence, ANE is a 'prohibited person' and is prohibited from applying for or obtaining 'child-related employment' (see sections 33B and 33C of the Commission Act), unless he obtains an order under section 33H or 33I of the Commission Act.

Relevant legislation 7Section 33C of Part 7 of the Commission Act contains a statutory prohibition on 'prohibited persons' applying for, undertaking or remaining in 'child-related employment'. Section 33E prohibits an employer from employing a 'prohibited person' in 'child-related employment'. Section 33D requires an employer to ascertain whether an employee is a 'prohibited person' if employing that person in 'child-related employment.' 8The term 'prohibited person' is defined in section 33B of the Commission Act. So far as it is relevant, subsection 33B(1)(a) provides that a 'prohibited person' means a person 'convicted of a serious sex offence' (i.e. an index offence). The word 'convicted' is defined in section 33(1) to include 'a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.' 9The term 'serious sex offence' is defined in subsection 33B(3) of the Commission Act. It relevantly means 'an offence involving sexual activity or acts of indecency that were committed in New South Wales and that were punishable by penal servitude or imprisonment for 12 months or more.' In this application, there is no dispute that the index offence of which ANE was convicted falls within this definition and therefore a 'serious sex offence'. 10The term 'child-related employment', is broadly defined in section 33(1) of the Act. It relevantly provides as follows: child-related employment: (a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment: (i) ..., (ii) ..., (iii) ..., (iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987) and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999), (v) employment in refuges used by children, (vi) ..., (vii) employment in clubs, associations, movements, societies, institutions or other bodies (including bodies of a cultural, recreational or sporting nature) having a significant child membership or involvement, (viii) employment in any religious organisation, (ix) ..., (x) ..., 11The word 'employment' is also broadly defined in subsection 33(1) to include 'performance of work as a volunteer for an organisation.' The word 'children' is defined in section 3 of the Commission Act to mean a person under the age of 18 years. Consequently, the word 'child' in Part 7 has been given the same meaning. 12The statutory prohibition in section 33C does not apply where the 'prohibited person' obtains an order under section 33H or 33I of the Commission Act declaring that Part 7 does not apply to the index offence of which the person has been convicted (including a finding of guilt) (see subsection 33B(2)). The Tribunal has jurisdiction to make such an order under section 33I of the Commission Act (see subsection 33I(1)). It also has the power to make an order subject to conditions (see 33I(6)). 13Section 33I of the Commission Act relevantly provides as follows: 33I IRC and ADT may make declarations concerning prohibited persons 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. A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. 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. An applicant must fully disclose to the relevant tribunal any matters relevant to the application. If the 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 or section 33H in respect of that until after the period of five years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of the refusal. Orders under this section may be made subject to conditions. The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs, and (b) an appeal lies on a question of law to the Supreme Court of any party to the proceedings. 14Subsection 33G prescribes a number of offences for which a 'prohibited person' is not entitled to make an application for an order under section 33H or 33I. The index offence of which ANE was convicted is not an offence of this kind. 15Section 33J of the Commission Act sets out the matters that are to be considered by the Tribunal in determining an application by a 'prohibited person' under section 33I. That section provides as follows: 33J Matters to be considered in determining review applications (1) The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children. (2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (3) In deciding whether or not to make an order in relation to a person, the Commission or 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 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. 16Section 32 of the Commission Act provides that 'the safety and welfare of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of' Part 7. 17The Court of Appeal has recently confirmed that the exercise of the Tribunal's jurisdiction under section 33I of the Commission Act is protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. That is, the purpose of this Act is not to impose additional punishment on a prohibited person, but to eliminate possible risks to children. The repealed Child Protection (Prohibited Employment) Act 1998 (Repealed Act) had a similar purpose: see R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. 18The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour's consideration was made in the context of subsection 9(4) o the Repealed Act. That subsection was in similar terms to subsection 33J(1) of the Commission Act, in that the Tribunal's discretion to make an order only arose where the Tribunal 'considered' the applicant did not pose a risk to children. However, the Repealed Act did not contain a statutory presumption of a risk of harm, an express onus on the applicant to prove that he/she did not pose a risk of harm as found in subsection 33J(2) of the Commission Act. Nor did the Repealed Act contain a provision in the terms of section 32 of the Commission Act. Nevertheless, His Honour's remarks in regard to the meaning of risk have continued to be cited, with approval, since the commencement of the provisions in Division 2 of Part 7of the Commission Act: see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15], L v Commission for Children and Young People & anor [2008] NSWIRComm 195 at [31], FZ (supra) at [60], 19In V (supra), after citing with approval remarks made by Peterson J in L v Commission for Children and Young People [2001] NSWIR Comm 134 and Haylen J in R v Commission for Children and Young People [2002] NSWIRComm 101, Young JA said the following at [42]: '42 ...[what] one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...' 20At [43], His Honour rejected the contention of the respondent that 'children' in subsection 9(4) of the Repealed Act meant children generally. That is, His Honour rejected the proposition that the subsection should be read to mean that where an applicant is found to pose a risk to a section of children (i.e. female teenage children), there is a risk to children generally. His Honour said the subsection should be read to mean: '43 ...a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. If a person is going to be employed amongst boy children, then the fact that he might be a risk to girl children may be quite irrelevant. 44 As against this, there is the fact that under the section a prohibited person is either declared to be a person to whom the Act does not apply, or else no declaration is made. The answer ... to this is that the power under s9(9) can be brought into play. That is, for instance, a declaration can be made subject, for instance to the condition that the declaration will cease to have effect if the person changes his or her current employment or if he or she commences to work with different types of children.' 21The essence of the remarks of His Honour Young JA, is that when considering risk, the ability to impose conditions should not be disregarded. That is, subsection 9(9) of the Repealed Act has been held to mean 'the imposition of relevant conditions [that] 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': see RV (supra) at [16]. 22Subsection 33I(6) of the Commission Act has been construed to have the same effect. However, as I have already mentioned, this provision must be read together with the provision that presumes the applicant to be a risk to children by reason of the index offence and the applicant's onus to establish that he/she does not pose a risk to children. Accordingly, if the applicant seeks an order subject to conditions, the onus remains on the applicant to establish that with the imposition of conditions he does not pose a risk to children. 23I note that orders subject to conditions under section 33I of the Commission Act are seldom sought, or made: for example see ADV (supra) and RV (supra).

Section 33J(3) factors 24In support of his application, ANE submitted a copy of a Certificate III in Children's Services that he was awarded, in December 2011, by TAFE NSW. He also submitted a brief statement of the work he has been undertaking in recent years together with a number of references, including references from some of his children. He also submitted a report from a psychologist, Wendi Sheldon, dated 15 January 2013 and a letter, dated 30 January 2013, from Lyn Bown, Counsellor/Clinician of the Department of Health. 25The respondent tendered into evidence two bundles of documents which included material relevant to the ANE's index offence, ANE's criminal record, documents produced, by the Department of Family and Community Services, pursuant to a summons and a report of Gerard Webster a Forensic and Counselling Psychologist. Mr Webster's report is dated 18 April 2013 and was prepared, on the instructions from the respondent. The report was based on a two and a half hour clinical interview with the ANE and material provided to him by the respondent. I note ANE willingly attended this interview at the request of the respondent. 26ANE is 48 years of age and resides with his partner, two of her children and their son, who was born in March 2011. In addition to his two year old son, ANE has six biological children, varying in age from four to 23, from different partners. None of these children currently reside with him. 27Set out below is a summary of the evidence so far as it relates to the factors set out in sub s 33J(3) of the Commission Act.

Index offence 28As I have already mentioned, the offence which brings the ANE within the terms of Part 7 of the Commission Act is his conviction, in October 1986, of the offence of indecent assault. The maximum penalty for that offence was four years imprisonment. ANE was initially sentenced to two years imprisonment with an 18 month non-parole period. He was also convicted of an offence of break enter and steal, which occurred at the same time as the indecent assault offence. He was sentenced to two years imprisonment for this offence and the Court ordered that the sentence for the indecent assault offence was to be served after his two year sentence for the break, enter and steal offence (i.e. sentences to be served consecutively). 29ANE appealed his convictions and sentences to the District Court. On 3 April 1987, the District Court confirmed his conviction and sentence. However, the Court made an order that the sentences were to be served concurrently and not consecutively, as the offences arose from the same circumstances. The District Court also ordered that the ANE's non-parole period be reduced to 12 months. Hence he was imprisoned for one year. 30In regard to ANE's conviction of the index offence, the only information available was a copy of the statement of Detective Sergeant Andrew Wallis. In that statement Detective Sergeant Wallis described ANE's contravening conduct as follows: '4. About 10.00am on Sunday, 16 March, 1986 in company with P.C. Constable 1/c Marks I attended the St George Hospital where I saw the defendant [ANE]. I said to him, "I am Detective Sergeant Wallis and this is Detective Marks, we are from the [name] Police Station. What is you (sic) full name?". He said, "[ ANE]." I said, "We are making enquiries in relation to your actions early on Saturday morning prior to you falling from the window of Unit [Number and address]. It is alleged that you indecently assaulted a girl [name of victim] who was asleep in that unit and that you also stole a wrist watch and an amount of money from that unit. Do you understand that?" He said, "Yes." I said, "You are not obliged to say anything in relation to these matters unless you wish to do so but whatever you say may later be produced in evidence. Do you understand that?" He said, "Yes." I said, "Would you care to say anything about your actions on Saturday morning?" He said, "I went to the Businessmen's Club at [name of Club], I had a lot to drink, then I remember talking to [name of a female], she lives at those units, but I don't remember anything after that." I said, "What were you drinking at the Club?". He said, "Bourbon, Scotch and beer." I said, "It appears that you gained entry to the unit by climbing the outside of the block of units and onto the balcony, then in through the kitchen window. Would you care to say anything about that?" He said, "I can't remember doing that." I said, "A men's wristwatch that was taken from that unit was located in your property here at the hospital. Would you care to say anything about that?" He said, I can't remember taking anything." I then said, "you will later be charged with Break, Enter & steal and sexual assault. Do you understand that?" He said, "Yes." 31In his oral evidence, ANE said he had no recollection of what occurred on the night in question. I understood that this lack of recollection was due to the fact that on the night in question he had consumed a large amount of alcohol. ANE also said he had little recollect of what had occurred during the course of the hearing, in October 1986. He said he pleaded not guilty and the hearing was very short, no more than three minutes. 32The respondent contends that on the basis of the sentence imposed, it can be assumed that the index offence for which the ANE was convicted was not a trivial offence. In my view, on the basis of the information that is available it is appropriate to make such an assumption. The offence itself is a serious offence and I find that while it is not at the very serious end of the scale, it was nevertheless sufficiently serious. 33However, it is now 27 years since the offence was committed.

The age of ANE and the victim at the time the offence was committed 34On the information provided the victim was an adult. It would appear that the victim might have been about the same age as ANE (i.e. around 20 - 21 years of age).

Whether ANE knew, or could reasonably have known, the age of the victim 35The exact difference in the ages between ANE and the victim is not known. However, as I have indicated above it would appear that they may have been about the same age. On the information provided, it would appear that the victim was known to the applicant.

ANE's present age 36ANE, as I have stated above, is currently 48 years of age.

ANE's total criminal record 37In summary, ANE's criminal history is as follows: Date Charged Offence Sentence 25/10/1984 Drive unregistered vehicle and uninsured vehicle. $30.00 fine on each charge. 13/12/1984 Possess Indian hemp and smoke Indian hemp. $75.00 fine on each charge. 16/01/1985 Possess Indian hemp, possess utensils, and smoke Indian hemp. $75.00 fine on each charge. 26/07/1985 Drive manner dangerous, possess stolen property and fraudulent use of plates. $300.00, $200.00 and $50.00 fine on each charge respectively. 03/04/1985 Possess Indian hemp. $300.00 fine. 24/07/1986 Disqualified while a disqualified driver, drive unregistered motor vehicle and drive uninsured motor vehicle. $300.00, $50.00 and $50 fine on each charge respectively. 24/07/1986 Two charges of malicious injury and one charge of assault female. $200.00 fine on each malicious injury charge and sentence deferred on ANE entering a recognizance to be of good behaviour for 12 months and not molest, assault the victim. 04/03/1986 Drive uninsured vehicle, drive unregistered vehicle and drive while disqualified as a driver. $100.00 fine on the first two charges and $1,000 fine on the charge of being a disqualified driver. 01/10/1986 Index offence (not child related) and break enter and steal offence. 20/01/1992 Mid PCA. $350.00 fine. 02/09/1993 Mid PCA. $350.00 fine. 13/12/1994 Mid PCA. Fined $700.00 and enter a recognizance to be of good behaviour for two years and licence was disqualified for two years. 26/06/1998 Common assault (not child related). Enter a recognizance to be of good behaviour for 12 months. 29/10/1988 Common assault (not child related) and contravene an apprehended domestic violence order (not child related). Community service order for 100 hours and enter a recognizance to be of good behaviour for two years. 16/05/2002 Drive with high range PCA. Fined $1,500.00 and disqualification of licence for three years. 24/06/2004 Drive while disqualified for holding a licence. Imprisonment for 6 months. Disqualification of licence for two years. 38As can be seen from the abovementioned table, ANE has not been convicted of any offences since 2004. The offences for which he has been convicted are primarily driving related offences including driving with above the prescribed amount of alcohol. 39His criminal record also includes a number of convictions for offences of violence. The first conviction was in July 1986, followed by the conviction of the Index offence, in October, of that year. This was followed by two further offences, in June and October 1998, of common assault. These convictions, however, were not child related. 40ANE's July 1986 conviction for assault, related to an event that occurred on 12 February that year. The event involved an altercation between ANE and his former girlfriend. According to the factsheet, prepared by police for the purposes of the hearing of the charge, ANE pushed his ex-girlfriend to the ground, causing her to hit her head on a rock. He then punched her several times to the left side of her body. It is stated that during this altercation ANE pushed over a motorcycle and smashed an indicator of the cycle with a carjack. 41The October 1998 conviction involved ANE's second wife. According to the police factsheet, the events occurred on 17 and 18 September 1998. ANE's second wife alleged that ANE had kicked her in the middle of her bottom. She said she felt some pain on being kicked. The police fact sheet states that there was no visible sign of any injury to ANE's wife. The police fact sheet goes on to say that ANE did however, begin to shout at his wife and pulled her ponytail. The police were called and ANE was charged with an offence of assault. 42The respondent also relied on a number of police reports about ANE concerning alleged domestic violence, children at risk and a 28 February 2005 charge, laid against ANE, of contravening an apprehended domestic violence order. These charges were subsequently withdrawn and dismissed on 24 March the same year. 43The domestic violence reports and charges primarily relate to ANE's second wife, who has a disability. It would appear that their relationship broke up in 2005-2006, but remained volatile for some time thereafter. In his oral evidence ANE explained that his second wife was difficult and sometime manipulative. 44Of concern to the respondent was the January 2010 'child/young person at risk' police report. On this day, the police responded to a call received about the welfare of two of ANE's children who were living with him in a caravan. Residents at the caravan park had informed police that the children had been left alone in the van. They said they had seen ANE leave about 45 minutes earlier and he appeared to be intoxicated and this was a regular occurrence. Police found the two young children sleeping in their cots. Not long thereafter, ANE returned with two older children, who were visiting him. Police were concerned about the welfare of the children given the condition of the caravan and ANE appearing to smell of alcohol. As a consequence, the younger 2 children were placed into care. However, the older two children remained in ANE's care.

Other matters 45As I have mentioned the respondent relies on the expert report of Mr Webster. Mr Webster also gave oral evidence in the course of the hearing. 46In his report, Mr Webster set out a summary of the information ANE provided in the course of his clinical interview. Included in this information was the following: ANE was brought up in a strictly religious family. His father worked as a cleaner and was a very hard man, ANE said his father was unreasonable in discipline and also overbearing, ANE's father would beat him and his mother, ANE was the middle of three children. He attended the local school and his relationship with his teachers was mixed. He said he was suspended or expelled from school. He said he had a fair few fights but never picked one and had a lot of friends, ANE said that he had experimented with illicit drugs around the time he left home, when he was 16 years of age. He said, by the age of 18, his use of drugs had intensified and become more diverse in that he used speed, LSD, cocaine methyl nitrate and noxious oxide. He said this intensive period of drug use ended after he was accused of breaking and entering into a home and indecently assaulting a woman. He was 20 years of age at that time, he said, as a result of his incarceration, he lost a lot of his former friends within his community. Upon release from prison he started to clean up, however he continued to have little respect for authority. It was at this time that he became involved in his church, at the age of 23 he married. That marriage lasted for five years and he thought it was a great relationship. They had two children, however his wife left him, ANE said he was heartbroken and destitute as a consequence of his marriage breakdown and found the church to be supportive, at the time his wife left him, he was running his own business. He believed that as a result of his wife's departure, he went through a period of depression and then began drinking regularly during the evenings. As a result of his drinking he lost his driver's licence for 10 years. He also felt that he had been set-up by police, ANE said after his marriage broke up he formed a positive relationship with an older couple who became like his adopted grandparents. After the man died, ANE was asked, by the woman, to take on the role as her carer which he agreed to do. He did so for a period of about four and a half years, in 1992, ANE met his second wife at a deaf club. He described her as being profoundly deaf and they remained in a relationship for 12 years. ANE explained that during this time there were 11 breakups of the relationship. He said that his second wife was a chronic user of marihuana and as a result he also began using it. They had two sons and after the final breakup in their relationship in 2006, Family Court proceedings resulted in the older boy living with the ANE and the other living with his mother, subsequent to the breakup of his second marriage, ANE met another woman who was living in a woman's refuge next door to his apartment. This woman had six children from previous relationships and she and ANE had a child, who is currently about five years old. The couple then had a second child who was born with a disability. ANE said that by 2009 that relationship had come to an end. He said his partner had abused him psychologically and physically, ANE said that he met his current partner three years ago and they have a son who is currently two years of age. He said that his current partner has three children from a previous relationship. He described his current partner as being great with kids. He said he believed she may have Asperger's disorder and has memory problems. He said she is currently seeing a psychiatrist and that they get on well, ANE said he was currently working part-time in property maintenance and continues to run his own business in the same field. He said he had been seeing a psychologist for the last two years and while he use to drink nearly every night, he now drinks only occasionally (i.e. on social occasions). He said he did not see himself as being an alcoholic. 47In assessing ANE, Mr Webster used three psychometric instruments namely: The Minnesota Multiphasic Personality Inventory (MMPI-2) test, which is a well recognised tool in the diagnosis and treatment of mental illness, The Rorschach test, which is a method of psychological evaluation, and The Multiphasic Sex Inventory (MSI-II) test, which is a tool to assess risk of sexual offenders In regard to the MMPI-2 assessment, Mr Webster noted that it was administered over the telephone. But as I understand his report, Mr Webster was of the view that the responses given by the ANE during the test were nevertheless a true representation of his personal views. 48Mr Webster found that ANE's clinical scales were within normal limits. He qualified this by saying that although ANE has no clinical scale elevations, he is likely to have substance abuse or use problems that could be a source of further problems. In regard to this test Mr Webster found that the ANE had a strong need to be around others and was gregarious and enjoyed attention. He also said that ANE's personality characteristics related to social introversion-extroversion. He said the ANE is typically outgoing, and his social behaviour is not likely to change if he is retested at a later time. 49Mr Webster attributed most of his report to his assessment of ANE through the use of the Rorschach test. That test, unlike the other tests is not a self-assessment test. Instead it is a test which seeks a person's interpretation to inkblots on a block of paper. There are ten such blots, and while the test has been in use since 1930 to examine personality characteristics and emotional functioning of a person, it is my understanding that it is a not a test, widely used, or accepted for use in assessing risk: see LT v Commission for Children and Young People [2012] NSWADT (Unreported, 1 November 2012 File No 124002, at pages 7 and 8). 50Accordingly, while I have no basis to question Mr Webster's findings in regard to ANE's responses to the blot tests, I am not persuaded that these findings are also indicative of risk of harm. 51In regard to the Multiphasic Sex Inventory assessment, Mr Webster noted that the ANE had failed to report having been accused of any sexual misconduct or physical abuse when completing this test. He went on to say as follows: ' ... [Generally], most persons allege to have committed a sex offence show some measure of defensiveness, which if extensive and widespread, influences the reliability and outcome of a clinical or test taking interview. Fortunately, the MSI-II incorporates well separate measures that contest for a client's carelessness, malingering, inconsistency, evasiveness, defensiveness and dissection. In the case of [ANE], his Total F Percentage and Index score was 88% or higher which means he responded "faults to a large number of items causing many of his scale scores to be affected. He therefore presents a deceptive testing pattern resulting in very limited information available for interpretation.' 52In regard to this test, Mr Webster noted that ANE did not report ever having committed a sex offence, having had deviant sexual interests or having engaged in deviant sexual behaviour. However, it was noted ANE 'responded "true" to the item "My sexual offense happened because of my having too much drugs and alcohol.' 53Mr Webster concluded by saying that, in his opinion, he believed that the ANE 'poses a significant risk of harm to children in his care. I therefore consider that any child in his care - as a parent or as a professional - would be at risk of physical or psychological harm and, to a much lesser extent sexual harm.' 54For the reasons set out above, to the extent, Mr Webster opinion is based on ANE's responses to the Rorschach test, it is arguably an overstatement of risk. As I have indicated, Mr Webster's conclusions seem to be primarily based on the Rorschach test. 55However, as I have explained, subs 33J(3) of the Commission Act provides that ANE is a risk to children by reason of his index offence and the onus is on him to prove otherwise. That is, there is no onus on the respondent in this regard. 56ANE has not provided a psychological report on assessment of risk. He explained that he did not have the resources to do so. As I have explained, he did provide a brief report of Wendi Sheldon, psychologist. In that report, Ms Sheldon states that ANE has been consulting her sine 26 September 2011. The purpose of these consultations are said to concern ANE's 'separation from his children' and no mention is made of his index offence nor is there any assessment of risks. In her report, Ms Bown, counsellor/clinician, states that ANE had been attending his local Drug and Alcohol Service, Relapse Prevention Group since late August to early December 2012.

Conclusions and Orders 57Having regard to the findings above, on the whole, I am not satisfied that ANE has discharged his onus that he does not pose a risk to children. I accept that it is now 27 years since ANE was convicted of the index offence and he has not been convicted of a similar offence since then. However, he does have more recent offences of violence. These offences, his index offences, his driving offences and the risk of harm reports to police all seem to arise in circumstances where he has consumed alcohol. He seems to have come to recognised that his alcohol consumption is problematic and has taken steps to address this. 58I also note that none of these offences involve a child or young person. However, there is some evidence of his children being placed at risk of harm while intoxicated. 59I am also not persuaded that ANE has adequately addressed his alcohol consumption, or his offending conduct, which brought him within the terms of the Commission Act. These are undoubtedly matters he is able to address, with the support of his current partner and through appropriate ongoing treatment and consultations that is directed towards issues of risk assessment. 60I appreciate that such assessments would involve some expense on ANE's behalf. However, it is a matter for him. 61Accordingly, the appropriate order is to refuse to make the order sought by ANE. 62The effect of such an order under s 31I of the Commission Act is that ANE is prevented from making a further application for an order for a period of 5 years, unless the Tribunal orders otherwise (see subs 31I(5) of the Commission Act). In my view, it would be appropriate to make an order allowing ANE to make a further application within two years of the publication of these reasons for decision. That application would need to be brought under the new legislative scheme as set out in the Child Protection (Working with Children) Act 2012 and ANE would need to place before NCAT sufficient material to establish that he does not pose a risk of harm to children (including risk report by an appropriately qualified psychologist or psychiatrist). 63However, I make no determination as to whether, an order under subs 31I(5) of the Commission Act, would or would not give ANE standing to bring that application as this is a matter for determination in the event he does bring such an application. 64Hence I order: ANE's application for an order under subs 31I(1) of the Commission for Children and Young People Act 1998 is refused. Pursuant to subs 31I(5) of the Commission for Children and Young People Act 1998, ANE is granted leave to bring a further application for an order after two years from the publication of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 January 2014

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