BEB v The Children's Guardian

RELEVANT LEGISLATIVE PROVISIONS 6Section 4 of the Act provides that: "The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 7Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 8Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 9Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 10Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 11Section 12 provides that there are two classes of Working with Children Check Clearances which are: a) Volunteer - authorising workers to engage in unpaid child-related work; and b) Non-volunteer - authorising workers to engage in paid and unpaid child-related work. 12Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 13Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The Applicant was born on 26 June 1959 and was an adult at the time of the offence. 14In para (1)(e) of Schedule 2 to the Act, offences under s.61O of the Crimes Act, 1900, are included in the specified offences that are disqualifying offences. 15Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to BEB because of the offence in 1996.

APPLICATIONS FOR AN ENABLING ORDER 16Section 28 of the Act provides: (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 17Section 30 of the Act provides as follows: (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Commission considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. (3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.

SERIOUSNESS OF THE OFFENCE WITH RESPECT TO WHICH THE APPLICANT IS A DISQUALIFIED PERSON 18The Tribunal finds that the most accurate description of the offence is that in the facts tendered with his consent in the Local Court when he pleaded guilty to the offence. His appeal was as to the severity of the sentence; not as to the findings of the offence. 19Those facts are: "The Defendant moved into the victim's residence in April 1996, where he has since resided as a tenant. On the evening of Saturday 1 June, 1996, the victim's mother went out of the evening leaving the victim, an 8 years old female, in the Defendant's care. The Defendant whilst home alone in the lounge room of the premises with the victim, discussed with her how babies are born. The Defendant then masturbated himself in the presence of the victim and then incited her to assist him. The Defendant instructed the victim to masturbate his penis until it ejaculated. He then tasted his semen in the presence of the victim." 20The victim was vulnerable because of her young age and immaturity. That is a factor which makes the offence more serious. Similarly, because the victim had been left in the care of the Applicant and he used her in this way in breach of his obligation to care for her and protect her, the offence was more serious. The offence was also more serious because of the age difference between the victim and the perpetrator. 21The Judge who sentenced the applicant for the offence noted in his reasons that the maximum sentence for the offence was imprisonment for 7 years. He rejected submissions from counsel for the applicant that what the applicant did was at the lower end of the range of offences under the section and found it was "towards the middle or higher end of the scale". 22The Judge said on 8 November1996 that in listening to the submissions made by the applicant's counsel "either you don't get the seriousness of this offence or he doesn't." he said "In this case again my concern in your coming to court again today and the submissions that have been put to me on your behalf, don't seem to suggest that you accept that kind of responsibility and in fact the submissions on your behalf indicate to some extent that you feel like the victim in all of this and that again is totally inappropriate". 23The probation and Parole Report noted that a psychiatrist, Dr Blaszczynski, who had interviewed and assessed the applicant had found that the applicant had given a different account of the offence to the facts he had consented to in the Court. He said the applicant was attempting to minimise the offence by denying that he had encouraged or requested the victim to touch his penis. Dr Blaszczynski recommended that the applicant receive further counselling after sentencing. He did not. 24The probation and parole report also stated that the applicant had admitted that "on occasions he is inclined to drink to excess". It recommended that any recognisance or parole should be subject to supervision and "conditioned that he undertake psychiatric counselling as directed by his Probation and Parole Officer". No such psychiatric counselling occurred and it appears none was directed.

THE PERIOD OF TIME SINCE THE OFFENCE AND THE CONDUCT OF THE APPLICANT SINCE THE OFFENCE OCCURRED 25It is more than 18 years since the subject offence. 26On 5 May 2004 the Applicant was before the North Sydney Local Court on a charge of common assault. The offence was proved but dealt with without proceeding to a conviction. He was placed on a s.10 Bond to be of good behaviour for a period of 12 months. 27According to Police reports the Applicant had been in a domestic relationship with a woman and they had been living with each other for about 2½ years. They went to a restaurant with friends on 13 April 2004 to celebrate her birthday. They both consumed alcohol and became involved in an argument on their way home. 28The facts recorded by the Police and tendered in the Court by consent are as follows: "About l0.05pm on Tuesday 13th April 2004 the Accused [BEB] and the Victim ..... returned to their residence at ....... Cremorne. Both persons have resided at this residence for the past twelve months, and both pay rent. The victim has been upset with the Accused as he has not brought her a birthday card or present for her birthday which was that day. The Victim has entered the house locking the door behind her stating that the Accused had keys to enter the unit. The Accused has knocked on the door for approximately 20 minutes before the Victim has unlocked the front door. The Victim returned to the lounge room and sat on the lounge. A verbal argument has ensued during which the Victim bas told the Accused she wished to end the relationship. A further argument has occurred with the Accused stating "Well go now". The Accused has grabbed the Victim's left arm and started to drag her off the lounge. The Victim at this time was saying to the Accused "Don't be stupid we have two rooms, One of us can stay in the spare room." The Accused has grabbed the Victim by both legs at one time holding her so that she was "basically vertical" with her head closest to the floor. The Victim was trying to resist the Accused by flinging her arms and legs around. The Accused has continued to drag the [Victim] [sic] along the floor towards the front door. She has continued to resist still flinging her arms and legs around. This has caused injuries to the Accused's ears, front tooth, hands and scratches to his arms. The Accused managed to drag the victim to the front door which is a distance of approximately 15 metres. The struggle has escalated at this point when the Accused has tried to push the victim out the door. The Victim has attempted to grab her mobile phone and retain possession of it and keep hold of the doorway. The Accused has managed to push the victim out the door by using both his arms and legs to her body, and locked her out. The Victim has contacted Police who attended a short time later. Both parties were moderately affected by alcohol when police arrived. As a result the Victim has received bruising to the upper arms on both arms, these bruises are about 2cm in width on both arms and 5 cm in length. She had a round bruise on the left side of her stomach about 1cm in diameter. The Victim had redness to her back consistent with being dragged along the floor, as well as a bruise to her lower back. The Victim returned to North Sydney Police Station and provided a statement. At this time the victim was only mildly affected by alcohol." 29Because he was so affected by alcohol, the Police on the night of the offence requested the Applicant to attend North Sydney Police Station the following day for interview. An Interim Apprehended Violence Order was made to protect the woman. The Applicant was interviewed by the Police on 14 April. He said all the injuries he sustained were received as a result of him trying to remove the woman from the unit. He was then charged. Ryde Local Court issued an Interim Apprehended Violence Order on 16 July 2004 restricting BEB's behaviour for the protection of the woman. After his interview by the police on 14 April the applicant was prosecuted for common assault. 30There was another incident involving the Applicant. He had been in a relationship with a woman JBD for less than 12 months in 1998 to 1999. They had a daughter and resumed living together when she was 1 year old, but then separated. 31According to Police records the Applicant commenced contacting JBD by telephone in April 2004 expressing a desire to resume their relationship. She complained to the Police that he usually contacted her by phone or by SMS text messages when he was intoxicated. He walked into her shop on 23 June 2004 and asked if she wanted to go out to dinner. She declined and asked him to leave, which he did. 32At about 7.30pm the same day the victim received a telephone call on her mobile phone from the Applicant and he said: "I want us to get back together but you have to get rid of your mother. I know people that can do it and it doesn't cost much." JBD terminated the telephone call. 33The next day at about 6.30pm the Applicant left 2 messages on JBD's mobile phone. 34On 30 June 2004 she received 3 text messages from him stating: "R U at all horny? I'm gagging." 35JBD went to the Police and reported the incidents and an application was made on her behalf for an Apprehended Violence Order restricting the conduct of the Applicant for her protection. 36In 2012 the Applicant worked for a government contracted tree lopping service as a traffic controller. He enjoyed the job, but within 3 months his employment was terminated even though he had recently completed a number of training courses. He believes the dismissal was because the company was notified about the conviction for the relevant offence. He says in his Affidavit: "This is just one example of 'puzzling' or unexpected dismissals from jobs I have experienced since 1996." 37He had a "serious" involvement with a woman who supported him throughout the Court case and the prison term. He resumed their relationship when he was released from prison and they later had a daughter. The Applicant's evidence is that he is no longer on good terms with the mother of his daughter and she prevents him from having contact with the daughter. He proposes that when he obtains steady employment he will pay child support for his child and he testified that he is currently trying to obtain contact with his daughter through the Family Court. 38He said in his Affidavit that the criminal conviction has: "...severely limited my employment opportunities and I am mainly only able to gain employment on a casual basis with no long term stability and at times I have had to receive government welfare. I love to work and want to be independent and work in a stable environment." 39He also testified: "Also when I was younger I was an A Grade football player and referee which I enjoyed very much. Due to my conviction I am no longer able to referee adult football games. This has also had a big social and emotional impact on me." 40His evidence is that he has a stable intimate relationship with a 50 year old woman who has 2 teenage children and who "holds a responsible position in the community". She has corroborated his evidence. They do not live together and he does not have much contact with her children. He has informed her of the offence and the relationship has continued. She supports his application.

THE AGE OF THE APPLICANT AT THE TIME OF THE SUBJECT OFFENCE 41The Applicant turned 37 the same month as the offence.

THE AGE OF THE VICTIM OF THE OFFENCE AT THE TIME OF THE OFFENCE AND ANY MATTERS RELATING TO THE VULNERABILITY OF THE VICTIM 42The victim was 8 years of age. She was vulnerable because of her age and immaturity and also because she was reliant upon the Applicant to care for and protect her at the time he committed the offence.

THE DIFFERENCE IN AGE BETWEEN THE VICTIM AND THE APPLICANT AND THEIR RELATIONSHIP (IF ANY) 43The difference in age was 29 years. 44The relationship was that the Applicant was a boarder in the premises occupied by the child and her mother and on this occasion the mother had gone out and had relied upon the Applicant to care for the child.

WHETHER THE APPLICANT KNEW OR COULD REASONABLY HAVE KNOWN THAT THE VICTIM WAS A CHILD 45The Applicant knew the victim was a child.

THE APPLICANT'S PRESENT AGE 46The Applicant is now 55 years of age.

THE SERIOUSNESS OF THE APPLICANT'S TOTAL CRIMINAL RECORD AND HIS CONDUCT SINCE THE OFFENCE OCCURRED 47The Applicant had a drink drive conviction when he was living in the United Kingdom before he came to Australia in 1984 at age 25. 48In September 1988 the Applicant was convicted in Sydney of driving with high range Prescribed Concentration of Alcohol on 25 August 1988. Later the same month he was convicted in the North Sydney Local Court on a charge that he on 9 September 1988 drove a motor vehicle with the Lower Prescribed Concentration of Alcohol. On that charge he was convicted, fined $300 and disqualified from driving for 12 months. 49In 1995 he was convicted at Manly Local Court of cultivating indian hemp. He was fined $2,000 and ordered to pay Court Costs of $46. On the same day he was convicted of having goods in custody reasonably suspected of being stolen and fined $500. He appealed against the conviction. The District Court confirmed the conviction and dismissed the appeal. 50There was the conviction for common assault in April 2004. 51His most recent conviction was in March 2005 in the Burwood Local Court when he was convicted of driving with an expired license (less than 2 years). He was fined $200 and ordered to pay Court costs of $63. 52The Applicant's criminal record extends over a period of more than 21 years until he was 46 years of age. Clearly he had an ongoing problem with the use of alcohol as alcohol was involved in many of the offences and his disputes with women.

THE LIKELIHOOD OF ANY REPETITION BY THE APPLICANT OF THE OFFENCE OR CONDUCT AND THE IMPACT ON CHILDREN OF ANY SUCH REPETITION 53The impact on a child of a repetition of conduct such as that involved in the subject offence would be serious. 54The Children's Guardian arranged for a psychological risk assessment report to be prepared by Dr Katie Seidler, a psychologist with appropriate qualifications and experience to qualify her as an expert in such assessments. She saw the Applicant for 2½ hours in March 2014. She found that the Applicant tended to speak in a monotonic voice for much of the time. She said: "[BEB] did not impress as a particularly reflective or psychologically minded individual". 55Dr Seidler had access to the various records and documents that are in evidence before the Tribunal as part of the Children's Guardian's case. She applied a personality assessment inventory and risk assessment tools known as "The Static-99" and "The Risk For Sexual Violence Protocol". 56BEB reported to Dr Seidler that he had an older brother who died from leukaemia when BEB was about 10. She reported: "[BEB] offered that his brother's passing was not a particularly significant event for him emotionally although he remembers being confused by it. However, it seems likely that his brother's death had far more of an emotional impact for [BEB] than he either understands or was willing to acknowledge on this occasion." 57He told her the relationship between his parents broke down when he was about 8 years of age and he remained in the care of his father after the family breakdown. His mother left and took his younger sister with her. 58Dr Seidler reported: "[BEB] does not know why this was the case and again, he reflected this was not distressing for him, such that he 'just got on with it'. This is somewhat surprising to me given his age." 59To Dr Seidler BEB said this mother re-partnered after separation from his father and had 2 more daughters who are at least 20 years his junior. He said he had some contact with those women until he was charged with the sexual offence in 1996: "... when he claimed his half-sisters and his mother ostensibly rejected him. [BEB] claimed that he is not upset by the rejection of and the lack of recent contact with these people." 60He told Dr Seidler that although he had contact with his mother from time to time after he came to Australia, there was little or no bond of affection between him and his mother. He said his mother could not even remember his birthday but commented that this did not upset him unduly. 61Dr Seidler reported regarding BEB's relationship with his father: "As noted above [BEB's] father died in or around 2006, reportedly of heart disease. He described his father in positive terms, claiming that his father was 'brilliant' man, whom everyone liked and admired, such that he was 'very popular' and 'successful'. [BEB] added that his father was a good care-giver who was affectionate and willing to set consistent and appropriate limits on his children. [BEB] believes he shared a close relationship with his father but again, surprisingly, he denied being particularly upset or de-stabilised by his father's death." 62BEB reported that he left the family home at around 17 years of age in order to move away for work. He has been independent ever since. He told Dr Seidler that he is currently residing alone in a rented studio apartment. He said he had no plans for him to change residence in the foreseeable future. 63He also said that he came to Australia in around 1982 initially in order to pursue a work opportunity as a graphic artist on a contract for 3 years. Dr Seidler reported: "After the expiration of this contract [BEB] relocated to New Zealand for a time before returning to the United Kingdom and then back to Australia in around 1994. He has been here ever since and is not a permanent resident of this country. [BEB] considers Australia to be his home emotionally but he is considering returning to the United Kingdom to spend time with his step-mother, who is now elderly." 64BEB finished his Year 10 equivalent at High School and then left school to study art. He ceased those studies after 12 months because he had difficulty with the course. Then he took up an apprenticeship. Other than study for the apprenticeship, he said he also studied photo-shopping and several other courses that he could not remember. 65He told Dr Seidler that for the last 12 years he had been working in traffic control and also had a truck driving license and occupational, health and safety certifications. His employment was on a casual basis. 66BEB told Dr Seidler that he had been terminated from a number of positions: "Although apparently never for any misconduct. Rather [BEB] claimed that he has been terminated under surprising conditions which he attributes to effects of his earlier conviction for a sexual offence. He denied any sexual concerns in the workplace at any time." 67To Dr Seidler BEB described himself as someone who "used to be the life and soul of the party", but his experience of being charged with a sexual offence and serving time in prison changed this. He told her that some friends rejected him or did not support him, or simply disconnected from hism socially following his charge. 68But he said that he continues to enjoy an active social life which involves him playing darts or poker. He said he finds this satisfying. He denied being particularly lonely or isolated socially. He told Dr Seidler that he has had several serious intimate relationships but has never married or lived with a partner for any length of time. He said that he does not "know what love is", such that he does not believe he has ever been in love. She asked him specific questions about this aspect and reported: "[BEB] acknowledged having been hurt and let down by women in the past and hence, it seems that he maintains a degree of emotional distance in his relationships, presumably in order to protect himself emotionally." 69BEB has a son 22 years of age and they have ongoing contact but he conceded that there is "distance in the relationship and they have not spent much time together over the years. 70He told Dr Seidler that his daughter is now 13, and her mother has prevented him from having any contact with her since he was imprisoned for the subject offence. He said he has not seen her since she was 8 years of age and he is initiating Family Court proceedings to obtain contact with his daughter. 71He told Dr Seidler that he has been involved in his current relationship for at least 3½ years. He does not live with the woman, as she cares for her 2 teenage children. He said he gets along well with her and they have a lot in common. He noted that the relationship is more positive though than those he has been involved in previously in addition to which his feelings are stronger for his partner than for previous partners. 72Dr Seidler reported on BEB's alcohol and drug use. He told her that he first used alcohol at 16 years of age. He claimed he is a social drinker and that his alcohol use has never been problematic. But he then acknowledged some psychosocial harms associated with binge consumption of alcohol including driving and sexual offences. She reported: "[BEB] stated that he has never abused alcohol in self-medication, nor has he ever been dependant on this substance. He is apparently aware of his 'limits' and drinks safely according to these." 73He also acknowledged that he had engaged in "recreational use" of cannabis and "experimental use" of amphetamines and cocaine. He told her that he does not believe that his substance use has ever been problematic and as such, he has never engaged in any substance abuse treatment. 74Regarding his mental health, his expressed view was that he does not have and has not had a mental health problem. He did acknowledge some difficulties with anger in childhood. He claimed to be "a passive individual who does not like to fight". When questioned about domestic violence problems he referred to situational pressures, a dysfunctional partner, and a relationship resulting in tension and discord. He did not acknowledge any contribution from alcohol use or abuse. 75BEB denied ever having contact with a mental health professional or engaging in psychological counselling for any reason. This includes any treatment relating to sexual offending behaviour. He later claimed that he had attended sessions with a psychologist in gaol, but it appears that he did not seek out counselling in relation to the conduct that lead to him being imprisoned. 76Dr Seidler said that the Applicant's responses to the personality assessment inventory was: "Indicative of someone who is quite defensive in the sense that he has sought to present himself as someone who is free from even minor short-comings and vulnerabilities. To this end, [BEB's] profile of responses on the PAI made under-represent the extent of psychopathology although his scores in this regard were not so elevated so as to have invalidated the profile from further interpretation." 77Subject to those considerations, she found that his profile did not reveal any area of notable pathology or disturbance, suggesting that he is a well-adjusted individual, who is not particularly distressed or dysfunctional. Notwithstanding those responses, the tests indicated that alcohol use has caused problems for him in the past. 78Dr Seidler reported: "[BEB] appears to be someone who is more wary and sensitive in relationships than others and accordingly, others may see him as someone who is tough-minded and hostile. As such, his personal relationships are likely to be quite distant and [BEB] is probably not someone who prioritises relationships and social connections, such that he may be aloof interpersonally and preferring of independence. Even so, [BEB] responses to the test items of this measure suggest that he has some positive relationships in his life on which he can rely for emotional care and support." 79As part of the pre-sentence report in 1996 in relation to the sexual offence, there was a report by Professor Blaszczynski, a clinical psychologist. He noted that there were discrepancies in the Applicant's account of the offence compared with the version of the incident given by the child and given to the Court at the hearing. Dr Blaszczynski expressed the opinion that BEB was attempting to minimise the offence by his responses. He recommended that he receive further counselling once the matter was dealt with by the Court. The applicant did not act on that advice. 80Dr Seidler's assessment also indicated that he is not motivated for psychological treatment. He does not see the need to make any significant changes. This is consistent with his failure to seek out psychological counselling for the sexual assault problem while he was in prison and in the years since then, even when the offence created the problem for him in terms of the refusal to provide a Working with Children clearance check. 81Dr Seidler's report was available when the hearing occurred on 8 May 2014. She was cross-examined. That afternoon the matter was adjourned part-heard on the application of BEB. BEB's solicitor informed the Tribunal that the purpose of the adjournment was for BEB to attend about 12 sessions of psychological counselling about the subject offence and his alcohol use and obtain a further report. But although the proceedings were adjourned from May until October, when the Tribunal resumed the hearing, BEB had not attended on any psychologist for counselling at all and there was no further Psychologist's report. 82Dr Seidler concluded in her report that BEB's account of his sexually offending behaviour was sanitised and he was "notably defensive in discussing sexual matters at interview". She said: "[BEB] did not endorse a history of sexual deviancy, inappropriate sexual interests or practices, hyper-sexuality or the use of sex as an emotional coping strategy. However, he has engaged in casual sex frequently and this is understood within the context of a history of intimacy concerns that have their foundation in the aforementioned emotional disconnection. This has prevented [BEB] from achieving long-lasting intimacy." 83She said for those reasons it was difficult to conceptualise the reasons for his offending. She said: "However, this was unlikely to have been motivated by deviance per se and more likely to have been a function of intimacy and emotional concerns, coupled with an opportunity that presented at the time within the context of the disinhibition associated with alcohol intoxicating and possible concomitant personal stressors or destabilisers." 84In her risk assessment in her report Dr Seidler took into account actuarial measures, Static-99 assessment, and dynamic risk facts. She concluded that BEB is considered to pose a low risk of re-offence. She said that given the length of time since his offence: "It would seem that there are few, if any, risks present for [BEB] now in relation to sexual abuse. However, in a general sense, intimacy and emotional connection concerns and alcohol abuse appear to be the most salient risk for [BEB]. Therefore, under conditions of personal or emotional distress or when inebriated with alcohol, [BEB] risk is likely to increase but it does not appear that this risk is specific to children or to any particular age group, although there was no evidence that males would be at risk of [BEB]." 85Later in the report Dr Seidler said: "The most salient risk factors in this case are understood to be opportunity, the acute effects of alcohol intoxication, and emotional destabilisers associated with emotional disconnection and interpersonal difficulties. [BEB] would benefit from intervention in these areas in terms of his personal development but this is unlikely to have any tangible impact on his risk, given the length of time since he offended, nor is [BEB] likely to engage in such intervention. That being said, in my opinion, there is some intervention that is considered necessary in this case and my recommendations to this end will be outlined in detail below." 86She said in her recommendations that her concerns: "Pertained to his irresponsible position in relation to his offending behaviour, his unsophisticated understanding of victim impact and risk management, and his ongoing difficulties with emotional intimacy. Why I do not consider his risk to be acute and it is also noted that it is almost 2 decades since he has offended sexually, both of which are positive, the aforementioned concerns remain unresolved and [BEB's] domestically abusive behaviour is more recent. For these reasons it is my opinion [BEB] would need a brief program of psychological intervention designed to:

• challenge his understanding of his sexual offending behaviour;
• increase his insight into the antecedents to his sexual offending behaviour;
• improve his understanding of victim impact;
• assist him to develop a greater awareness of his emotional difficulties; and
• allow him to develop a plan for risk management and child protection in the community. It is likely that these treatment needs could be addressed in a program of perhaps 12 sessions and it is recommended that a clinician with expertise in working with forensic clinics who present with sexual offending concerns will be best placed to offer [BEB] this service." 87In her cross-examination on 8 May 2014, Dr Seidler adhered to her opinions, conclusions and recommendations expressed in her report. She said that when she asked him about what actually happened with the child, he told her: "something happened but he could not remember what". She said that was consistent with a level of defence. 88She said she made the recommendations she did: "because I don't think he can identify what he'd do to keep himself safe in the future. He couldn't articulate why he did the behaviour and how he will keep himself safe. It is one component of his defensiveness. The biggest fact is that he cannot explain why he did it and what he will do to stop it". 89She repeated that although on the risk assessment scales his risk of further sexual assault of a child is low, she has the concerns as to his violence/aggression, his inability to account for his obligations and his lack of understanding about the risk. She said that his problem is that he does not have any insight into his problems and does not respond pro-actively only re-actively. She said those matters go to the risk. She suggested that the decision in the proceedings be postponed to allow the Applicant time to "demonstrate a commitment to change". 90Although the adjournment gave the Applicant an opportunity to do that, he did not do demonstrate any such commitment. 91Notwithstanding the connection between alcohol use and his behaviour problems, especially those that have led to criminal convictions, the Applicant has not ceased to use alcohol. He has not sought any assistance from a psychologist by way of psychological counselling in relation to the alcohol use or the sexual assault on a child. 92 He seeks to be able to resume his role as a referee for adult football and enjoy the social aspects of that. He enjoys watching sports on t.v., socialising with his friends at Manly Leagues Club or Balgowlah RSL, seeing live music, playing poker twice a week and other activities. His partner's evidence is that when he has work, his work day routine includes "beers at his local club" before dinner and they enjoy live music at local clubs and mix socially at parties. It seems that many of his recreational activities involve drinking alcohol or being in licensed premises. 93His Affidavit in support of the Application did not propose that he do anything to reduce the role of alcohol in his life. In cross-examination, however, when association of alcohol with his criminal convictions was high-lighted, he said he had changed his drinking habits and was: "more moderate. And I don't drink drive when drinking". 94He conceded that at times he was having problems controlling his use of marijuana and his alcohol use. A document he completed in gaol stated his alcohol use at 5-6 standard drinks 2-3 times per week and he conceded that that was accurate at the time of the offence. In another document he completed at the prison he said that he drank approximately 5 schooners daily. 95It was put to him in cross-examination that he has had a problem with alcohol use for many years. He denied that.

ANY INFORMATION GIVEN BY THE APPLICANT IN OR IN RELATION TO THE APPLICATION WHICH HAS NOT BEEN SET OUT ABOVE EARLIER 96There is a lengthy affidavit of the applicant's lady friend . It is very supportive. She has found him to be "a very caring supportive partner". She says he has a very wide circle of friends. He enjoys the support of many friends who have been his friends for more than 20 Years, despite knowing of the subject conviction. 97She also gives evidence that in sexual activities between them and other observations of him, she has not observed him use pornography, seek to have anyone masturbate him or taste his own semen. He says he has been quite open with her in disclosing the offence and conviction.

ANY OTHER MATTERS THE CHILDREN'S GUARDIAN CONSIDERS NECESSARY 98The Children's Guardian opposes the Application.

CONCLUSIONS 99A literal interpretation of ss.28(7), requiring the Applicant to prove that he does not pose a risk to the safety of children, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children. 100In Commission for Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 'risk' with the words that follow, namely, 'to the safety of children'. 101The risk described by Dr Seidler from psychological assessment tools, that the Applicant poses for children is low. 102But the Applicant's personal risk assessment is clouded by several factors. One is his history of bad behaviour when affected by alcohol, his failure to avail himself of any counselling or therapy regarding management of his use of alcohol and his continuing extensive use of alcohol. 103The Second is his failure to ever admit the detail of the sexual assault and his minimisation of the offence at times and purporting that he can't recall what happened. This conduct has persisted for 18 years. 104The third factor is his failure to admit the seriousness of his conduct. 105The fourth factor is his persistent failure to address or obtain professional help addressing the involvement of his use of alcohol in the offence and in other behaviour problems he has had., and in relation to his need to understand the sexual conduct with a child in 1996, why it occurred, and how he can prevent it happening again. 106The fifth factor is his persistent failure to obtain professional help to address his need to understand the sexual conduct with a child in 1996, why it occurred, and how he can prevent it happening again. It is of particular concern that he has rejected opportunities to do this and appears to take the view that such professionals are only for people with a mental illness. 107The Section makes it clear that the Applicant has the onus to satisfy the Tribunal that the Applicant does not present an appreciable and real risk to a child. In these proceedings the Applicant has failed to discharge that onus. The Tribunal is not satisfied that he is not an appreciable and real risk.

ORDERS 108The Order of the Tribunal is: (1)The Application of BEB for an enabling order is refused and dismissed.

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: 11 November 2014