BFL v Children's Guardian

Relevant Provisions of the Act

1. The Child Protection (Working with Children) Act 2012, NSW came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance.
2. Section 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 the Act.
3. The Act does not define "abuse". However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows: "the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence."
4. The definition of "abuse" in section 4(1) of the Family Law Act 1975 (Cth) is as follows: ""abuse", in relation to a child, means: (a) an assault, including a sexual assault, of the child; or (b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or (d) serious neglect of the child."
5. These provisions support a view that the concept of 'child abuse' includes physical and sexual assaults as well as actions which are likely to cause psychological harm.
6. For the purposes of this application, the relevant section is subsection 28 (1) of the Act, which makes provision for applications for an enabling order.
7. Subsection 28(7) provides that where an application for an enabling order is made, "it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of the children." That is, in this application, the onus is on the applicant to prove, on the balance of probabilities, that he does not pose a risk to children.
8. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account: 1. the nature of the cause of action or defence, and 2. the nature of the subject-matter of the proceeding, and 3. the gravity of the matters alleged.
9. The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His honour states that the sole criterion should not be to protect children from "any possibility of abuse". At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant: 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.
10. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the (now repealed) Commission for Children and Young People Act 1998 to have the same meaning (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]).
11. In this Tribunal the meaning of "risk" was considered by Senior Member Sheedy (as she then was) in the matter of BHA v Children's Guardian [2014] NSWCATAD 161. In that matter the Senior Member notes that the remarks of Young CJ in Commissioner for Children and Young People v V (supra) have continued to be cited with approval, by the Administrative Decisions Tribunal and then the NSW Civil and Administrative Tribunal in construing the meaning of 'risk' as it appears in section 28 of the Act. She notes that in BYR v Children's Guardian [2013] NSWADT 310 at paragraph 40 Deputy President Higgins as she then was wrote: 'In my view, the remarks of His Honour equally apply to the meaning of 'risk' as it appears in s 28 of the Act.'
12. Senior Member Sheedy also notes that the remarks have been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90 and most recently in BFX v Children's Guardian [2014] NSWCATAD 115.
13. In the matter of BFX v Children's Guardian (supra) Senior Member Anderson sought to use the second reading speech upon the introduction of the Bill that was to become the Child Protection (Working with Children) Act 2012 to confirm that the meaning of "risk" is the ordinary meaning intended by that word. He cites Mr Dominello, the Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 as saying the following: "All adults can present a risk to children. The bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
14. In BHA v Children's Guardian [2014] (supra) Senior Member Sheedy considered a submission that the second reading speech was to the effect that the current Act requires the establishment of a level of risk higher than that of the previous Act in that the risk is to be "significant". In considering this matter Senior Member Sheedy refers to the opening paragraph of the Minister's speech which includes the statement that the new Act "will provide greater protection for the children of NSW", and which, despite listing four key changes in the new Act as compared to the previous Act does not refer to any variation in the risk threshold. In concluding that the risk threshold in the current Act is not less than that under the previous Act, Senior Member Sheedy refers to s.33 of the Interpretation Act 1987 which provides that in interpreting the provisions of an Act, a construction that promotes the purpose of object of the Act should be preferred to one that does not.
15. The use of the term "preying" in the phrase "adult preying on a child" potentially presents some difficulties and might be taken to require a high degree of culpability. However in my view the measure as stated, being that of "greater than any adult preying on child", suggests that his Honour was not intending the term to mean actions incorporating such a high level of culpability as it is unlikely that adults generally would "prey" on a child in such a way. Further I note that the index offence committed by the original applicant in the matter heard on appeal as Commissioner for Children and Young People v V was one of carnal knowledge and the use of the word "preying" might be appropriate in that context but not necessarily applicable in other circumstances. It is my view that the word "preying" does not add anything to the test as stated.
16. In his written submissions counsel for the applicant submitted that the meaning of risk is as outlined by Young CJ in Commissioner for Children and Young People v V (supra).
17. Neither counsel addressed me specifically on the meaning of "adult preying on a child". In any event, I am of the view that the test as stated by Young CJ should be read subject to the requirements of the Child Protection (Working with Children) Act 2012 which requires that I treat as paramount the safety, welfare and well being of children and that the level of culpability should not be set according to a level that might otherwise be imputed by the word "preying".
18. Taking into account all of these matters, I am satisfied that the meaning of "risk" is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that 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, though "preying" does not impute a high level culpability that might otherwise be attached to that word.
19. Subsection 30(1) of the Child Protection (Working with Children) Act, sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application: 1. 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, 2. the period of time since those offences or matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the offences or matters occurred, 4. 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, 5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. whether the person knew, or could reasonably have known, that the victim was a child, 7. the person's present age, 8. the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 10. any information given by the applicant in, or in relation to, the application. 11. any other matters that the Children's Guardian considers necessary
20. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to minimise possible risks to the safety of children.

The Evidence

1. The applicant tendered into evidence, without objection, the following: documents: 1. Exhibit A1 - Report of psychiatrist Dr Christopher Bench dated 4 May 2014 2. Exhibit A2 - Report of Dr Allan Kirkpatrick dated 29 May 2014 3. Exhibit A3 - Signed statement of BFL dated 25 March 2014 including annexures marked "A" through to "H" being: 1. Curriculum Vitae of (BFL) 2. Letter dated 18 November 2008 addressed to Ms Judith Mathews, C/- New Horizons from Grant Parr. 3. Letter dated 15 November 1997 addressed "To Whom it May Concern" from Mr Len Steele and a letter dated 15 March 2014 addressed "To Whom it May Concern" from Mr Leonard Steele. 4. Letter dated 10 October 2008 addressed "To Whom it May Concern" from John Leslie Soper. 5. Letter dated 16 October 2008 addressed to "The Manager Working with Children" from Reverend Rod Moore and letter dated 10 March 2008 addressed "To Whom it May Concern" from Reverend Rod Moore. 6. Letter dated 25 March 2014 addressed "To Whom it May Concern" from Mr Rex Bolte. 7. Undated letter addressed "To Whom it May Concern" from BFL's sister in law. 8. Letter dated 18 October 2008 from Yvonne Lingard, Lt Colonel, Salvation Army. 1. Exhibit A4 - Signed statement of BFL dated 30 September 2014 2. Exhibit A5 - Report of Dr Christopher Bench dated 14 October 2014
2. The applicant and Dr Bench each also gave sworn oral evidence during the course of the hearing.
3. The Respondent tendered into evidence the following: 1. Exhibit R1 - Bundle of documents tabbed 1 through to 15 being: 1. Tab 1 - Material provided to the Office of the Children's Guardian by NSW Police - Sex Crimes Squad in response to s.31 request. 2. Tab 2 - Material provided to the Office of the Children's Guardian by NSW Police - Operational Information Agency Court Services in response to s.31 request. 3. Tab 3 - Applicant's CRIMTRAC record. 4. Tab 4 - Material provided to the Office of the Children's Guardian by Central Local Court in response to s.31 request - Court record number 7-9. 5. Tab 5 - Material provided to the Office of the Children's Guardian by Moss Vale Local Court in response to s.31 request. 6. Tab 6 - Material provided to the Office of the Children's Guardian by Castlereagh St Local Court in response to s.31 request - Court record number 17. 7. Tab 7 - Material provided to the Office of the Children's Guardian by Balmain Local Court in response to s.31 request. 8. Tab 8 - Material provided to the Office of the Children's Guardian by Central Local Court in response to s.31 request - Court record number 26. 9. Tab 9 - Material provided to the Office of the Children's Guardian by Castlereagh St Local Court in response to s.31 request - Court record number 27 - 29. 10. Tab 10- Material provided to the Office of the Children's Guardian by Central Local Court in response to s.31 request - Court record number 39. 11. Tab 11- Material provided to the Office of the Children's Guardian by Sydney District Court in response to s.31 request - Court record number 41 and 42. 12. Tab 12- Material provided to the Office of the Children's Guardian by Sydney District Court in response to s.31 request - Court record number 51 and 52. 13. Tab 13- Material provided to the Office of the Children's Guardian by Fairfield Local Court in response to s.31 request - Court record number 60. 14. Tab 14- Material provided to the Office of the Children's Guardian by Corrective Services in response to s.31 request. 15. Tab 15- Material provided to the Office of the Children's Guardian by New Horizons in response to s.31 request. 1. Exhibit R2 - Tab 16 - Material provided to the Office of the Children's Guardian by New Horizons in response to s.31 request. 2. Exhibit R3 - A further bundle of documents containing material from NSW Police - Court Services, Operational Information Agency and an additional page to be inserted at Tab 13 in the bundle of documents tabbed 1 through to 15. 3. Exhibit R4 - Response to Section 31 request provided by Salvation Army Employment Plus. 4. Exhibit R5 - Material filed by Respondent on 14 August 2014 being documents provided by Legal Aid NSW and the Office of the Director of Public Prosecutions. 5. Exhibit R6 - Material filed by Respondent on 18 August 2014 being documents provided by District Court Registry. 6. Exhibit R7 - Material filed by Respondent on 25 November 2014 being documents provided by Interrelate, a relationships counselling service.
4. Counsel for the applicant initially objected to the admission of parts of the evidence which the respondent sought to tender. The objections were to the admission of the following: 1. Parts of a document at Tab 12 in exhibit R1. The document is headed "Judge Patten's Notes". The material to which counsel for the applicant objected was a reference to alleged antecedent violence by BFL towards the victim of the disqualifying offence (Ms W) in April 1994 and in February 1994. 2. Parts of a document at Tab 12 in Exhibit R1 being a statement that Ms W made at Springwood Police Station on 26 May 1994. The parts of the statement to which counsel for the applicant objected were: 1. References to two incidents in 1994 prior to the index offence, one of which is referred to in the document headed "Judge Patten's Notes"; 2. A reference to alleged non consensual sex between the victim and BFL in February 1994, prior to the index offence; and 3. The use of the word "again" in relation to the alleged antecedent non-consensual sex.
5. In brief, 1. Counsel's objection to the admission of parts of the statement of Ms W was to the effect that the material was prejudicial to BFL and was of limited probative value as it comprised untested statements of Ms W in relation to alleged criminal actions of BFL for which BFL had never been charged. 2. Counsel's objection to the document headed "Judge Patten's notes" was based on the unknown provenance and status of the document.
6. In response to these objections counsel for the respondent said that he believed that the document headed "Judge Patten's Notes" comprised His Honour's summing up to the jury at the trial of BFL for the index offences and if this were the case, his reference to the allegations of Ms W to antecedent matters suggested that these allegations had been tested in evidence.
7. Counsel for the respondent referred me to the matter of Commissioner for Children and Young People v FZ [2011] NSWCA 111. That matter involved an appeal by the Commissioner against a judgement granting an appeal against a decision of the Tribunal and remitting the matter to the Tribunal for a new hearing. The application to the Tribunal was made by FZ who had been convicted of a sexual offence and as a result was a "prohibited person". In deciding that FZ had not demonstrated that he was not a risk to children the Tribunal took into evidence a statement of KB who said that some ten years previously she was the victim of indecent assault by FZ. FZ had not been charged in respect the alleged assault and KB was not summonsed to give evidence to the Tribunal. Therefore, there was no opportunity for FZ's counsel to cross examine KB regarding her claims. The primary judge held that FZ was denied procedural fairness because he did not have an opportunity to cross-examine KB and test her evidence. The appeal was dismissed, the applicant court being satisfied that FZ had been denied procedural fairness because the evidence of KB was admitted despite her unavailability for cross examination. Hodson JA and Handley AJA were of the opinion that had the Tribunal been satisfied on proper materials that KB was truly unavailable, then the Tribunal might have properly admitted the evidence and given it appropriate weight and in that case the Tribunal would not have breached its obligation to provide procedural fairness. Young JA however was of the view that even where there is a clear and compelling reason why the witness is not available, the Tribunal might consider it inappropriate to receive the evidence.
8. Counsel for the respondent sought an adjournment to enable him to seek the attendance of Ms W at the hearing and to obtain records of the trial of BFL both to establish whether or not the matters referred to by Ms W in her statement were tested in evidence at that trial and also to establish whether the document headed "Judge Patten's Notes" represented His Honour's summing up to the jury at the trial of BFL. There was no objection to the application for an adjournment which was granted.
9. The Tribunal reconvened on 1 September 2014 and on that occasion documents numbered R2 through to R6 were tendered without objection. 1. The document marked R5 comprises the material provided by Legal Aid and the Office of the Director of Public Prosecutions and includes transcripts of evidence from the trial of BFL that was held at Penrith District Court from 9 - 12 October 1995. 2. The document marked R6 comprises the Registry file relating to the trial of BFL that was held at Penrith District Court from 9 - 12 October 1995.
10. When the Tribunal reconvened on 1 September 2014: 1. Counsel for the applicant noted that the statement of Ms W had not been tendered into evidence at the District Court trial of BFL. However he said that the transcript in respect of that trial indicates that the matters referred to in the statement were canvassed in the oral evidence in chief and cross examination of Ms X during the trial and on that basis he was content that the statement be tendered even though he would prefer the oral evidence of Ms W. 2. In his submissions counsel for the applicant notes that Ms X's evidence about these matters was admitted as relationship evidence only and submits that the Tribunal should place little weight on them. 3. In relation to the document headed "Judge Patten's Notes" counsel for the applicant said that he was of the opinion that the document was not materially different from the summing up of His Honour as recorded in the court transcript. He said that for that reason he was satisfied that the document should be admitted in to evidence.
11. Counsel for the respondent agreed that Ms W's statement made at Springwood Police Station on 26 May 1994 had not been tendered into evidence at the trial of BFL. However he submitted that the allegations made by Ms W in that statement had been tested during the trial of BFL and proposed that the Tribunal admit references to those matters as included in the transcript of the trial.
12. Taking into account the submissions of counsel as well as the content of the court transcripts admitted into evidence I am satisfied that the transcript of the trial of BFL confirms that the document headed "Judge Patten's Notes" is substantially the same as His Honour's summing up to the jury in the trial of BFL.
13. I am also of the view that the transcript provides evidence that the substance of the statements that Ms W made at Springwood Police Station on 26 May 1994 were tested in that court, where they were admitted as evidence of uncharged acts of sexual misconduct and as evidence of the relationship between BFL and Ms W in the context of the denial by BFL that the sexual intercourse was non-consensual.
14. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 NSW or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995) and is required to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms (section 38, of the Civil and Administrative Tribunal Act).
15. Since the rules of evidence do not apply in these proceedings the restrictions imposed by section 91 of the Evidence Act 1995 do not apply to the consideration of the circumstances of the offences which led to the convictions imposed upon the applicant.
16. However subsection 38(2) of the Civil and Administrative Tribunal Act 2013 is to the effect that the Tribunal is subject to the rules of natural justice.
17. As is made clear in the matter of Commissioner for Children and Young People v FZ [2011] NSWCA 111, the Tribunal has a discretion to act on material which is rationally probative, and the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ , Roberts v Balancio (1987) 8 NSWLR 436.
18. As noted, counsel for the applicant withdrew his objection to the admission of the statement of Ms W made at Springwood Police Station on 26 May 1994 on the basis that matters referred to in those parts of the statement to which he had objected had been tested in evidence at the trial of BFL. Counsel for the respondent proposed that rather than refer to the allegations contained in the statement of Ms W made at Springwood Police Station on 26 May 1994, reference would be made to those allegations as referred to by Ms W in her oral evidence at the trial of BFL.
19. On the basis that the relevant statements had been tested during the trial of BFL, where they were admitted as relationship evidence, I admitted the statement of Ms W into evidence. During the hearing however, Ms W's claims about previous uncharged acts of sexual misconduct were referenced to the transcript of the trial of BFL which had been admitted without objection.
20. Counsel for the applicant also withdrew his objection to the admission of the document headed "Judge Patten's Notes". I admitted that document into evidence on the basis, accepted by both counsel, that the transcript of the trial indicated that these notes were substantially concordant with His Honour's summing up to the jury. They were therefore relevant to the circumstances of the offences of which BFL was found guilty.
21. In the following paragraphs I consider the evidence in the context of the factors set out in subs 30(1) of the Act.

The seriousness of the offences with respect to which the person is a disqualified person

1. The offences of which BFL was convicted and with respect to which he is a disqualified person are two counts of sexual intercourse without consent pursuant to s61I of the Crimes Act 1900 (NSW).
2. Based on the evidence before the Tribunal, the details of the offence are essentially as follows: 1. From sometime in 1992 BFL and Ms W had been in a sexual relationship. 2. During 1994 BFL was imprisoned and stayed with Ms W on weekends when he had weekend leave from prison. 3. When BFL was released from prison in April 1994, Ms W provided him with temporary accommodation in flat at her premises. 4. Around the time of the index offence BFL had been using heroin. 5. On 26 May 1994 BFL attended the home of Ms W to collect some belongings. On that occasion BFL and Ms W had sexual intercourse. 6. Ms W's daughter, who was then 5 years old, was in the house at the time of the sexual intercourse between BFL and Ms W on 26 May 1994. 7. BFL closed a door resulting in Ms W's dog, a Rottweiler, being locked outside.
3. The following matters were asserted by Ms W in her evidence during the trial of BFL: 1. Ms W alleged that prior to the index offences she had resolved to end the relationship with BFL. BFL denies this. In his statement to the Tribunal he asserts that Ms W 'set him up' because she was unhappy because he did not continue to reside with her. 2. Ms W gave evidence to the effect that BFL told her daughter to go to her room or he would hurt or kill Ms W. She also said that because she was frightened she told her daughter to stay in her room. During the current hearing, BFL denied threatening to hurt or kill Ms W. 3. Ms W said that BFL twisted her arm behind her back in taking her into the bedroom where the offences occurred. 4. Ms W said that she complied with BFL's instructions to her take off her clothes and allowed him to have sexual intercourse with her because she was afraid for her daughter and also because he threatened to have anal intercourse with her if she resisted him.
4. During the trial and at the current hearing BFL agreed that sexual intercourse took place, but denied that it was without the consent of Ms W. He denied using force against Ms W at the time of the index offence.
5. In his statement dated 25 March 2014 BFL states that there "was no history of physical violence alleged by the victim" of the offence. However as noted, the transcript of the trial of BFL includes evidence given by Ms W regarding allegation of previous uncharged acts of violence by BFL, which were admitted during that trial as relationship evidence. Additionally during the trial of BFL, Ms W referred to threats of violence made by BFL.
6. In the transcript of the sentencing hearing for the these offences, DCJ Patten indicates that he accepted that because of threats made by BFL at the time of the index offence that he would harm Ms W or her daughter, Ms W allowed BFL to have sex with her without physical resistance.
7. In respect of these matters, whilst BFL continues to assert that the sexual intercourse was consensual I am not in a position to re-examine the facts or second guess the guilty finding reached by the jury. I accept, for the purposes of this hearing that the offence was as proved against BFL, and the transcript of the trial of BFL provides the context of the offence as put to the jury.
8. The transcript of proceedings dated 12 October 1995 in respect of whether or not BFL should be granted bail pending sentence note that BFL committed the index offence when he was subject to conditional release and so was in breach of those conditions and that this as an aggravating factor in relation to the offence.
9. The Judge's comments upon sentencing BFL include the observation that BFL had been remanded in custody pending the trail and pending sentence after being found guilty. They also indicate that the following were taken into account: 1. The victim's statement. 2. BFL's "somewhat limited expression of contrition and remorse". 3. BFL's deprived adolescence and childhood. 4. BFL's rehabilitation efforts, including completion of a Salvation Army drug and alcohol program prior to the offence.
10. On 1 December 1995 BFL was sentenced for the offences of sexual intercourse without consent to a minimum term of imprisonment of 19 months dating from the date of sentence, and an additional term of 2 years and 5 months dating from 1 July 1997 and expiring on 30 November 1999. BFL was eligible for parole on 30 June 1997.
11. In setting the minimum and additional periods of imprisonment His Honour deviated from the standard formula as he was of the view that there were "special circumstances" arising from the attempts of BFL to rehabilitate himself and the need for him to be supervised when released to parole.
12. I am of the view that the sentence imposed on BFL indicates that whilst the court did not view this offence of the worst of its type, nor was it viewed as belonging to the least serious of offences of this nature.
13. In his written submissions on behalf of BFL, counsel for BFL states that BFL acknowledges the seriousness of the index offence. However, BFL continues to assert that he has never had non-consensual sex with Ms W.

The period of time since those offences or matters occurred and the conduct of the person since they occurred.

1. The offence was committed on 26 May 1994. BFL was sentenced to imprisonment from December 1995 and was released to parole in July 1997.
2. The evidence indicates that since the offence BFL's conduct includes the following: 1. When in prison he assisted in the conduct of Alcoholics Anonymous and Narcotics Anonymous groups at Cessnock Correctional Centre. 2. Whilst in prison and subsequently, BFL has completed a large number of training courses and other professional development activities including an Advanced Certificate in Alcohol and Other Drug Studies, a Certificate IV in Community Studies, a Diploma in Community Welfare Services (Alcohol and Other Drugs), Negotiation and Crisis Intervention, Certificate IV in Disability Work and Motivational Interviewing. 3. From January 1997 to December 1999 BFL owned and operated a small business. 4. From 2000-2007 BFL worked for Salvation Army Employment Plus as a Business Liaison and Employment consultant.

Apprehended Violence Order 2001 -2002

1. BFL was named as the 'person of interest' in interim Apprehended Violence Orders made in November 2001 and December 2001 and in a final Apprehended Violence order (AVO) made on 28 February 2002. The interim orders included as protected persons a female with whom BFL had previously had a relationship (Ms X) and her children. The final AVO included only Ms X as the protected person. The circumstances of these orders is outlined below: 1. A Police Report dated 9 November 2001 provided at Tab 1 of exhibit 1, records information about the AVO to the following effect: 1. BFL and Ms X were both employed at the Salvation Army and were in a relationship for some 6 months up until April 2001. 2. Ms X was receiving unwelcome email, text and voice messages on her telephone. 3. On 19 June 2001 Ms X received two threatening voicemail messages from BFL. 4. Ms X had continued to receive unwelcome though not threatening telephone contact from BFL and sought the AVO for her own protection. 1. A letter dated 29 April 2014 from the NSW Police Operational Information Agency, Court Services, filed as part of exhibit R3 attaches details of another AVO issued on 28 February 2002 as the result of a private application made by BFL naming him as the protected person and naming the Ms X as the person of interest. 2. In his statement dated 25 March 2014 BFL refers to the issuing of an apprehended violence order (AVO) some 12 years ago. He states that when the matter went to court the Magistrate also made an AVO protecting him against Ms X and that this was done without him requesting it. He states that neither he nor Ms X alleged any violence. 3. During the hearing under cross examination, BFL said that he had left messages on the landline of Ms X but that the messages had been directed at her boyfriend who was using 'ice'. 4. When cross examining BFL, counsel for the respondent asserted that despite having the documents since April 2014 BFL has not previously provided the explanation that the telephone messages were left for the boyfriend of the Ms X. In response, BFL made statements to the effect that had not previously seen all of the documents related to the AVO that were provided by the respondent. 5. In his written submissions counsel for the respondent notes that BFL did not provide his alternative explanation until cross-examined in these proceedings. He submits that irrespective of BFL's statement that he had left messages for Ms X's boyfriend, the AVO was issued naming Ms X as the protected person. She must have demonstrated that she feared for her safety for the AVO to be issued. Counsel also submits that this matter demonstrates BFL's poor conflict resolution in the context of an application for an enabling order that could result in BFL working in the social welfare field with "troubled youths exhibiting challenging behaviours".

Allegation made to police in 2002

1. NSW Police Information Reports dated 20 December 2002 and 31 December and filed as Tab 1 in exhibit R1 refer to allegations summarised below: 1. On 20 December 2002 a 20 years old female attended the Salvation Army Employment Plus for a modelling interview. 2. BFL advised the female that they should meet at a fast food restaurant at 5:00pm. She saw him just after 5:00pm outside the restaurant and he said he did not want to do the interview inside the fast food restaurant and offered to drive her to an unknown location to complete the interview. 3. The female declined the suggestion made by BFL and left the location. She attended the police station and appeared to be shaking and her speech was nervous. Police formed the view that the female was nervous of BFL. 4. The Information Report dated 31 December 2002 states that concerns had been raised about the possibility of BFL working with children but provides no further information about that matter. The report states that the State Manager for the Salvation Army's Employment Plus was contacted. He was aware of the complaint and had reallocated the female to another worker and had made contact with the local police regarding the female making a complaint.
2. Under cross examination BFL agreed that he had been allocated the 20 year old female client but denies suggesting they meet at the fast food restaurant or any other place. He said that he saw her at the restaurant when he stopped there on the way home from work and she yelled out to him. He said that there was no planned interview regarding modelling and that the female was required to attend a Work Net program every day for three weeks. He said that when she yelled out at him at the fast food restaurant she said something about modelling and he replied that she should see him at the office. He said that she was later removed from the Salvation Army program to another agency. BFL agreed when counsel for the respondent asked him if he was asserting that the victim made up the story.
3. When asked under cross examination why he had not provided information about the incident involving the 20 year old female job seeker, BFL said that the did not consider it relevant because: 1. The police had not spoken to him about the incident. 2. The incident was a workplace incident. 3. The alleged victim was not a child. 4. The allegations were false.
4. In his written submissions counsel for the respondent asserts that the failure of BFL to provide information about this incident constitutes a breach of his obligations under s.28(5) of the Child Protection (Working with Children) Act.

Workplace Complaint 2004

1. Documentation provided by the Salvation Army and contained in exhibit R4 includes information about a workplace incident referred to below. 1. A female co-worker complained that on 24, 26 and 30 August 2004 BFL had made unwanted comments of a sexual nature to her which had made her feel uncomfortable and worried that she might lose her job. The matter was dealt with as one of sexual harassment and an investigation was undertaken. During the course of the investigation BFL indicated that he had a different view from that of the complainant regarding these matters. In a letter to BFL dated 21 December 2004 the Human Resources Manager states that he had attempted to seek the views of the complainant regarding BFL's account of the incidents but she had not responded. No further action was taken regarding the matter which was considered to have lapsed. 2. BFL did not inform the Tribunal about this incident. 3. In his written submissions counsel for the respondent describes this complaint as a "workplace complaint involving sexual harassment in the context of an application for an enabling order arising from a disqualifying offence for an act of non-consensual sex." The respondent submits that in failing to provide the Tribunal with information about this incident, BFL failed to discharge his obligation under s.28(5) of the Child Protection (Working with Children) Act.

Unprofessional conduct August, September and October 2006

1. Documentation provided by Salvation Army Employment Plus contained in exhibit R4 includes an account of investigations, recommendations and action in respect of what was considered to be unprofessional conduct by BFL over the period of August, September and October 2006. The conduct included written and verbal comments. As a result, BFL was issued with a "First Warning". The documentation supplied by the employer lists a hierarchy of disciplinary action ranging from "formal counselling, to first warning, second warning and then dismissal.

Unprofessional conduct November 2006

1. Documentation provided by Salvation Army Employment Plus contained in exhibit R4 includes information about a disagreement between BFL and a colleague in November 2006. The matter was investigated and BFL was issued with a "Second Warning" and the colleague received formal written counselling. The investigation into the incident concluded that BFL had behaved in a threatening manner by "slamming his helmet down". The investigator comments that whilst the other staff member's behaviour had been inappropriate and unprofessional, BFL "must learn to walk away from situations where he feels that he may ultimately respond in an unprofessional matter". 1. In his written submissions, counsel for the respondent submits that BFL's conduct in this matter demonstrates his inability to walk away when exposed to provocative conduct in an application which could result in BFL working with troubled youths with challenging behaviours. Counsel also submits that in failing to advise the Tribunal of this incident, BFL failed to discharge his obligation under s.28(5) of the Child Protection (Working with Children) Act.
2. In his submissions in reply, counsel for the applicant notes that the November 2006 incident involved both parties in a workplace dispute and both are described as being agitated.

Photographing a co-worker in 2006

1. A Police Event Report dated 5 April 2006 records that a female co-worker had noticed BFL taking photographs of her and she reported the incident to her superiors who advised her to report the matter to police. Upon doing so she was informed that no offence had been committed and she was advised about seeking mediation or the issuing of an apprehended personal violence order.
2. BFL did not advise the Tribunal of this matter. However there is no evidence provided to the Tribunal that BFL was advised of the complaint.

Termination of employment April 2007

1. Documents supplied by Salvation Army Employment Plus contained in exhibit R4 indicate that BFL's employment was terminated on 2 April 2007 following suspension of his employment pending receipt of a "show cause" letter from him regarding unapproved absence from the workplace and breaching professional standards of behaviour.
2. In his statements BFL does not refer to the termination of his employment with Salvation Army Employment Plus.

Employment 2007 and 2008

1. In Annexure A to his statement dated 25 March 2014 BFL indicates that in September 2007 he worked as a postman with Australia Post.
2. In 2008 for six to eight weeks, BFL was employed at Mai-Wel Group as an Employment and Training Consultant. In Annexure A to his statement dated 25 March 2014 he states that he was dismissed from that position because he was disqualified from receiving a working with children clearance, even though he was not working with children.

Employment at New Horizons 2009 to current

1. Since January 2009 BFL has been employed by New Horizons as a residential support worker. In his statement dated 25 March 2014 he states that his role includes providing 24 hour assistance to clients with brain injuries or mental health issues. In annexure A to his statement dated 25 March 2014 BFL states that New Horizons management was informed by a Mai Wel staff member about BFL's history with the result that people have been bullying him, making up lies about him and telling staff about his past and trying to sack him. He notes that he has been on his 'third warning' regarding his employment for over 12 months.
2. Documents provided by New Horizons and filed as Tab 16 in exhibit R1 and as exhibit R2 refer to a number of workplace matters regarding BFL. 1. On 8 July 2010 BFL was issued with a 'First Written Warning' for aggressive, threatening and inappropriate behaviour to a supervisor and other staff members in addition to non-adherence with procedures and medication protocols. 2. On 12 April 2011 BFL was placed on a Performance Improvement Plan said to be aimed at improving his communication with team members, having him follow directions in a "respectful manner", follow procedures and not disclose information to clients. 3. On 20 May 2011 BFL was given a 'Second Written Warning' for communicating with colleagues, a line manager and an external provider in an "unprofessional, rude and condescending manner", and refusing to complete a reasonable work request, failing to follow confidentiality rules and for "physically pulling/pushing a client to hurry the client". 4. On 9 November 2011 BFL was accused of bullying and harassment but there was insufficient evidence to substantiate the allegation. No additional information is provided about this matter. 5. On 3 April 2012 BFL was issued with a 'Third and Final Written Warning' for "making a serious and vexatious allegation" against another staff member, making an unauthorised recording, intimidating, threatening and other inappropriate behaviour whilst on duty, and failure to implement a number of policies and procedures. 6. In his statement dated 25 March 2014, in what appears to be a reference to this matter, BFL states that a client had told him that he had been sexually assaulted by another member of staff. BFL states that he taped the client making that complaint and the matter was investigated by police, He states that he was told by his employer that he should not have taped the conversation. 7. On 15 October 2012 a staff member complained to the effect that BFL behaved in an angry and inappropriate way with staff and one client. 8. On 9 November 2012 and 22 November 2012 the same staff member complained that she was being victimised by BFL. 9. The Tribunal was also provided with a copy of a letter dated 9 January 2013 from the Head of People and Culture at New Horizons, advising of the outcome of a formal investigation regarding allegations that BFL had called a resident inappropriate names, used foul language to and sworn at a resident, told a staff member that he was "out to get them" and had driven in an aggressive manner following another staff member. The investigation was closed when it was determined that the allegations resulted from the "feedback from an unreliable client witness" and there was insufficient evidence to substantiate the allegations. 10. On 20 - 21 April 2013 a female staff member said she felt uncomfortable due to inappropriate comments by BFL. The document regarding this matter provides no further details regarding the matter and states that the staff member chose not to make a formal complaint.
3. In his statement, in addition to the explanation provided as outlined above in relation to the April 2012 incident, BFL states that during his employment with New Horizons he witnessed another worker inappropriately touching a client and he reported this to his manager. He states that the worker "took objection in response and claimed he felt intimidated" by BFL who received a written warning and was transferred to a different group home. It is not clear from the available material which of the above matters BFL is referring to in his statement.
4. BFL also states that whilst employed at New Horizons he received another written warning related to difficulties with other colleagues but nothing further had come of that matter. It is not clear from the available material which of the above matters BFL is referring to in his statement.
5. In his submissions counsel for the respondent submits that when in October 2012 BFL acted aggressively in respect of a client who had provoked him this was a demonstration of his "poor conflict resolution in the context of a an application for an enabling order that will enable BFL to work in a social welfare industry with troubled youths exhibiting challenging behaviours.
6. In his submissions counsel for BFL submits that: 1. BFL's work and study attests to his commitment to community assistance and development over an extended period of time and his desire to help others. 2. BFL's stable employment in the caring professions contributes to the "minimal or no likelihood" of BFL repeating the index offence. 3. The workplace incidents reviewed above must be viewed in their true context as workplace conflict which is commonplace and it is not unusual that conflict would occur over a career spanning a number of years.
7. In his written submissions, counsel for the respondent submits that the only information initially provided to the Tribunal by BFL about his workplace conduct was limited information regarding the AVO in 2001, and some information regarding his employment at New Horizons. In respect of the latter he submits that in his statement BFL makes an "oblique reference to 'another written warning' and "makes no mention of the previous warnings, their circumstances, or any explanation of them". Counsel submitted that in failing to provide additional information BFL has failed to discharge his obligation under s.28(5) of the Act to fully disclose any matters relevant to his application.
8. I note that in his statement dated 25 March 2014 BFL does refer to the written warning received when a co-worker reported feeling complained about feeling intimidated by him, in addition to "another written warning".
9. In his submissions in reply counsel for BFL submits that the allegation regarding failure to disclose is unfounded because: 1. The complaints were made in a workplace and were in respect of adult females with whom BFL had worked. 2. BFL was not aware of any further action taken in respect of the complaint by the 20 year old female when he was employed by the Salvation Army. 3. BFL should not be expected to recall and give account of workplace complaints that did not proceed to formal disciplinary action or adverse findings and which occurred many years ago.

BFL's use of illegal drugs

1. On 6 September 2012 BFL was arrested and charged with the possession of 0.2 grams of heroin. According to the police statement of facts, upon his arrest BFL told the police that he been using heroin once or twice a week and at the time of his arrest he was "very polite and cooperative with police". On 22 October 2012 BFL appeared for sentence at Fairfield Court in respect of that offence and was fined $265 and ordered to pay court costs of $83.
2. In his statement dated 25 March 2014 BFL states that his intended use of heroin when he was arrested for possession was a "one off". In comments related to his employment at Mai-Wel, included as part of Annexure 1 to that statement, BFL states that he had "thought about going back using drugs again but by some miracle … got busted purchasing less than a match head of the drug of my choice".
3. Under cross-examination BFL: 1. Denied that he has used heroin regularly. 2. Said that he has used heroin on two occasions since he was released from prison in 1997 and was planning to use a third time when he was arrested in 2012. He said that the first time he used heroin was when he was first released from prison and was stressed about a business venture that had faltered and that the second occasion was in 2000 after he and his wife had unsuccessful attempts to have a child using IVF. 3. Said that when arrested for possession he told the police he was a regular user of heroin even though he was not, because: 1. He told the police what they wanted to hear. 2. He does not consider use of heroin a crime, rather it is an addiction. 3. He knew that the offence would not result in imprisonment, and he was likely to be fined.
4. When asked under cross examination why he had not initially told the Tribunal about the additional times he had used heroin, BFL said that a possible explanation was that he did not see the use as important. He said that in his opinion his usage does not represent a relapse into drug addiction because a relapsed drug addict is not able to stop at one use. He said that he follows the principles of the Salvation Army Bridge Program which he successfully completed and whilst he believes he can never say he has stopped his addiction he has done very well to have used on only "three or maybe four" occasions in the past 20 years.
5. Under re-examination BFL said that he had driven from his home in Newcastle to Sydney to obtain the heroin that resulted in his arrest in 2012 because he did not know where else to obtain it, other than in his "old stomping ground".
6. Under cross examination BFL said that he did not recall whether he had told Dr Bench about his additional drug use episodes. He said that he thought Dr Bench knew about this.
7. In his report dated 4 May 2012 Dr Bench states that BFL said that he had not used heroin or opiates for 20 years. He says, however, that he had considered it was more likely that BFL had been using heroin prior to the September 2012 as that would be "more in accord with an individual who is being arrested for heroin possession". When questioned about this comment under cross examination by counsel for the respondent, Dr Bench said that he had asked BFL about the police record of him saying that he used once or twice a week and that BFL had said that he had not relapsed. Dr Bench said however that he had assumed that BFL had relapsed in 2012, but was now abstinent, and he had taken those matters into account in his assessment of the risk BFL posed to children. In his report dated 4 May 2012 Dr Bench notes that there is no evidence that BFL has used any illicit substance in the past 2 years and therefore his polysubstance dependence would be considered to be in remission.
8. In his statement dated 30 September 2014 BFL seeks to clarify his earlier statement about not using drugs by stating that that he "had not used regularly for a long time". He states that he had used heroin on "two separate occasions leading up to that arrest, I think during sometime that year" as a reaction to work related stress.
9. Dr Bench provided a second report to the Tribunal. In that report, dated 6 October 2014, Dr Bench states that he had regard to the statement of BFL dated 30 September 2014. He also states that for the purposes of this report he reviewed "in some detail" BFL's substance abuse history. He states: 1. BFL reported that he does not use alcohol daily and drinks less than one beer per month. He said he has not used cannabis for thirty years and has not used amphetamines in twenty-four years. 2. BFL said that he started using heroin when he was 21 years old on a daily basis until he was in his early thirties and that he was using upwards of two grams of heroin on a daily basis. For twenty years from when he was 36 years old he was abstinent and in September 2012 he used heroin twice in the context of workplace stress. BFL said that as he had been abstinent for many years he had no local drug contacts and therefore needed to travel to Sydney to obtain the heroin. BFL also said that he had been on a maintenance dose of methadone (25mg) for eight years and in the context of the current hearing had requested that the dose be increased to 40mg per day which had been his dose during the past two to three months. BFL thought that the methadone was not particularly beneficial, but that the Twelve Steps Program of Alcoholics Anonymous had been of benefit throughout his life. 3. Dr Bench refers to BFL as saying that he had used heroin "on two occasions in September 2012" and states that this did not alter his assessment of BFL because when reaching his conclusions in his previous report he had assumed that BFL had been using drugs at around the time of his arrest in 2012 and had taken that into account when diagnosing him as having a polysubstance dependence in remission. 4. Dr Bench states that the fact that BFL is actively participating in a methadone maintenance program including seeking an increase in his dosage, has continued to attend Alcoholics Anonymous and is monitored by his general practitioner would decrease any risk of relapse and temper any concerns he had about the possibility of relapse.
10. The Tribunal notes that in his statement dated 30 September 2014 BFL states he had used heroin on two occasions in the same year as his arrest for possession heroin (i.e. 2012). However in his oral evidence BFL said that he had used heroin once soon after his release from prison and on another occasion when under stress due to the inability of him and his wife to have a child.
11. In a letter to the Tribunal dated 27 May 2014 Dr Allan Kirkpatrick provides information and opinion to the following effect: 1. BFL has been his patient since 31 July 2002 when he was referred to him as a stable patient on methadone in need of a local methadone prescriber. He had no details of BFL's drug abuse history, but assumes that he was at some stage addicted to heroin. He also lacks details about when BFL was first placed on a methadone program. 2. BFL has been "extremely compliant" with the requirements of the methadone program, has never given Dr Kirkpatrick any cause for concern and is an "exemplary patient who is on a stable dose and does everything that is expected of him to comply with the treatment program".

Submissions regarding the period of time since the index offence and the conduct of BFL

1. In his written submissions counsel for BFL submits that: 1. The lapse of time since the commission of the index offence is significant. 2. BFL's involvement in assisting with drug and alcohol groups in custody shows dedication to a process of change in his life. 3. BFL's completion of a large number of courses and his employment in the community and welfare field shows his commitment to community assistance and development. 4. BFL has had no criminal charges since the index offence with the exception of the arrest for possessing heroin in the context of workplace stress. Regarding the September 2012 arrest: 1. There was a gap of some 18 years between the index offence and this conviction. 2. BFL made admissions to the police regarding the offences. 3. BFL had driven some 2.5 hours to obtain the drug and this would be unusual for a person who might be using the drug on a regular basis. 1. BFL's conduct since the index offence cannot be considered as alarming and cannot preclude the Tribunal from making a finding that BFL does not pose a risk to children.
2. BFL's counsel submits that BFL's drug use and his criminal history are intrinsically linked but submits that "this period of BFL's life is nothing more than a history". In this respect he stresses the following: 1. BFL has been abstinent from drugs for many years. 2. BFL is currently on a methadone program and has been since 31 July 2002. 3. Dr Bench describes BFL's methadone dosage as a low dose and commented that BFL is actively pursuing his treatment including methadone, monitoring by his general practitioner, and continued attendance at Narcotics Anonymous and Alcoholics Anonymous. 4. Dr Bench comments that the added support and active treatment further mitigates the risk of offending behaviour.
3. In his submissions counsel for the respondent makes submissions to the following effect regarding BFL's drug use: 1. BFL initially lied about his drug use both at the hearing and to Dr Bench. 2. BFL's drug use history is symptomatic of ongoing issues arising from his childhood abuse and mistreatment and whilst the drug abuse has been addressed, the underlying issues have not been addressed.
4. In respect of BFL's work history and in addition to the submissions canvassed above, counsel for the respondent submits: 1. There is a twelve year history of ongoing complaints by women against BFL in the workplace. Some complainants are clients and others are colleagues. The complaints are made in the context of a workplace in the social welfare industry where clients are from the lower socio-economic echelons of society and present with challenging behaviours. BFL's capacity to cope and exercise restraint in the case of such challenging behaviours is critical to his effectiveness in such a workplace. 2. Children and adolescents in such a workplace would present with similar challenging behaviours and his ability to cope directly affects the risk of emotional and physical harm to such people.

The age of the person at the time the offences or matters occurred

1. BFL was 36 years old at the time of the offence.

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. The victim of the offence was also 36 years old. The Tribunal was provided with no evidence to suggest that she was a particularly vulnerable person.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

1. There was no difference in age between the victim and BFL. The victim had been in a recently ended relationship with BFL.

Whether the person knew, or could reasonably have known, that the victim was a child

1. The victim was not a child.

The person's present age

1. BFL is now 56 years old.

The seriousness of the person's total criminal record

1. The Crimtrac record of BFL indicates a lengthy criminal record from 1976 through to his conviction for the index offence. The only recorded conviction since that offence was for possessing a prohibited drug. That offence is discussed above in the section of this decision dealing with the conduct of BFL since the offence.
2. In addition to the index offence BFL's criminal record from 1976 until the index offence comprises breaking, entering and stealing, goods in custody, and possession and supply of prohibited drugs (including cocaine, Indian hemp and heroin).
3. Over that period BFL was sentenced to periods in custody for the offences of possessing and supplying drugs as well as for the index offence.
4. A number of BFL's offences were committed when he was under good behaviour recognizances in respect of previous offences and the index offence was committed when he was on parole.
5. Regarding the seriousness of BFL's total criminal record counsel for BFL submits on behalf of BFL: 1. Whilst BFL has a criminal record that looks serious "at first blush" the offences occurred mainly between 1976 and 1991 and almost exclusively involve offences against property and offences related to drug use and supply. With the exception of the index offence there are no offences of a violent or sexual nature. 2. The offence of possessing heroin in 2012 followed an eighteen year gap in arrests and is not one involving violence or an offence against a child and is an offence at the lower end of offence seriousness.
6. Counsel for the respondent did not make separate submissions on this matter apart from those related to BFL's arrest in 2012 for the offence of possessing heroin and other matters related to BFL's heroin use referred to above.

The likelihood of any repetition by the person of the offence or conduct and the impact on children of such repetition

BFL's experience of childhood abuse

1. In his statement dated 25 March 2014 BFL states that he was physically abused as a child and "later turned to drugs" to cope with his "feelings of abandonment and feeling unworthy". He states that as a result of his childhood experiences he learned "how to treat children the right way, that is you should never hit a child at all ever, as well as never tell them negative things or label them etc".
2. In his report dated 4 May 2014 Dr Bench stated that BFL denied being the victim of sexual assault as a child. However, under cross examination on 9 September 2014 BFL disclosed that he had been sexually abused as a child, and that he had not advised Dr Bench of that fact.
3. On 9 September 2014, counsel for the respondent sought an adjournment of the hearing to provide an opportunity for the applicant to seek a further report from Dr Bench, taking into account the childhood sexual abuse, as well as to provide an opportunity for the respondent to seek records relating to the counselling which BFL was undergoing. Counsel for the applicant was also of the view that it was appropriate to adjourn the hearing.
4. Upon the recommencement of the hearing on 2 December 2014 the applicant tendered into evidence a statement dated 30 September 2014. In that statement BFL provides details of sexual assault commencing when he was in primary school and continuing with increased intensity when he was at a secondary boarding school.
5. In the report dated 6 October 2014 Dr Bench refers to collateral material including the statement of BFL dated 30 September 2014 and states that he has not altered his opinions as expressed in his previous report. He opines that BFL's substance abuse was likely to be "aggravated or provoked by his history of sexual abuse" and that issues regarding the sexual abuse and the mistreatment by his mother would appropriately be dealt with by psychotherapy. However he expresses the opinion the BFL does not meet the diagnostic criteria for post traumatic stress disorder.
6. Dr Bench was cross examined in relation to the evidence that BFL had been sexually assaulted as a child and the effect of that on his assessment of BFL. During cross examination he made statements to the following effect: 1. The fact that BFL was a victim of child sexual abuse and had not previously disclosed that matter did not in and of itself increase his risk to children. 2. Dr Bench had already taken into account that BFL was a victim of childhood mistreatment. 3. Dr Bench was not aware of a reason why being a victim of childhood sexual abuse would increase the assessed risk of BFL to children, but acknowledged that childhood sexual abuse could result in emotional damage and maladaptive behaviours. He agreed that if the fact of the abuse was not disclosed during an assessment that could affect the assessment of risk.
7. When questioned by counsel for the applicant in re-examination, Dr Bench said that there is some dispute in the literature about whether or not a childhood history of physical, social or sexual abuse increases the risk of future sexual offending.
8. Documents provided by Interrelate, the agency which provided BFL with counselling, indicate that BFL participated in a telephone intake assessment on 5 September 2014 and has participated since then in three counselling sessions. Specifically: 1. Notes relating to the first counselling session on 10 September 2014 record that the counsellor "experienced (BFL) as being angry underneath his story" and note that BFL said that he wanted to understand why he had been allowed to be placed with a step mother who had abused him and wanted to hold someone accountable. 2. Notes of the second session held on 3 October 2014 note that BFL said that he wanted to 'work on his abuse issues and why he was allowed to be put with abusive step parents". 3. Notes regarding the third counselling session refer to the provision of 'grounding' exercises.
9. Under cross examination Dr Bench was asked about his opinion regarding the need for BFL to undergo psychotherapy. His responses were to the following effect: 1. BFL is addressing his substance abuse issues that have arisen as a way of dealing with his childhood abuse. 2. BFL needs to deal with those issues through psychotherapy. 3. The sessions that BFL has had with Interrelate are too few to have dealt with issues resulting from his childhood experiences. 4. A "potential hypothesis " could be to the effect that BFL's incidents at work could result from unresolved anger directed at women because of mistreatment by his mother. 5. However that potential hypothesis would have little weight on Dr Bench's assessment of the risk posed by BFL because of the absence of historical incidences involving children.
10. Under cross examination Dr Bench said that in making his assessment he had not taken into account the documents provided by New Horizons. He said that he first assessed BFL on 29 April 2014 but neither of the New Horizons letters was provided available at that time. He said that he received additional documentation on 30 April 2014 but did not include information from New Horizons in his second assessment. Dr Bench confirmed that he had not seen the letter from New Horizons dated 9 January 2013.
11. Dr Bench also said that he had not utilised the information provided by the Salvation Army Employment Plus in his assessment of the risk of BFL.
12. In response to a question under cross examination, Dr Bench agreed that the issue of how BFL would deal with challenging behaviour of children in receipt of social welfare assistance is untested.
13. When re-examined in relation to his views about the need for BFL to undergo psychotherapy, Dr Bench responded to the effect that whilst he believes that BFL has some ongoing issues about the childhood physical and sexual abuse and that those matters would be appropriately dealt with in psychotherapy, his opinion that BFL "does not pose a real and appreciable risk to the safety of children either in the workplace or at all" is not qualified by other considerations.
14. During cross examination it was put to BFL that his experience of childhood abuse could have affected his emotional development such that he has difficulties in the workplace, particularly in his relationships with females. It was also put to BFL that he requires ongoing psychotherapy to assist him to deal with the effects of the abuse and to help him deal with its effects including anger.
15. In response, BFL: 1. Reported that Dr Bench advised him that matters would "get worse before they get better" and said he was not sure that he needed to continue counselling as he had been "OK" for 40 years since the events. 2. Said that in counselling he wants to seek "another perspective" and to "be free of what is holding (me) down". 3. Said that what the counsellor described as him being angry might have been described as him being "concerned" but that he has "every right to be angry". 4. Agreed that his childhood experiences could have affected him emotionally and agreed that these experiences could have affected his sense of self worth and how he sees himself in relation to others. 5. Agreed that his drug use was a symptom of his poor emotional development and represents an attempt to self medicate the effects of those experiences.
16. In response to the questions under cross examination about whether his emotional development issues affect his workplace behaviour, including anger in the workplace, BFL responded to the following effect: 1. When he was released from prison he needed to learn to work with people, especially women. 2. BFL asserted that his work history is not negative overall and that he has been promoted on occasions. He said that his current boss sees him as "key worker". 3. In response to a question under cross examination pointing to the fact that all his workplace incidents have involved females, BFL replied to the effect that at his workplace females predominate so it is likely that any complaints would be from a female. 4. BFL agreed that some people have said that his workplace incidents could relate to the effects of his childhood experiences on his emotional development, but he does not agree with that proposition. 5. BFL denied that his experiences have resulted in him hating females and said that he believes he is able to control his actions. 6. BFL agreed with the proposition that having disclosed the childhood abuse and being abstinent from drugs, he believes that he has dealt with the issues and does not accept the view of Dr Bench that he continues to require psychotherapy to deal with the effects of his experiences. 7. However, BFL said that he will continue in psychotherapy if he sees the need to do so. He said that he is concerned about the cost of therapy. He also said that he viewed his attendance at Interrelate as constituting psychotherapy.
17. Under further cross examination BFL said that whilst not convinced about the need for ongoing counselling he would continue to attend counselling to explore those issues.
18. Under re-examination in relation to ongoing counselling BFL said that he had received some counselling when he was in custody and that he believes that the primary issues he needs to deal with are related to the physical abuse by his mother.
19. In his written submissions counsel for the respondent submits that: 1. BFL lacks insight into the role of childhood physical and sexual abuse on his emotional development, with particular relevance to how he treats people in his interpersonal relationships. 2. BFL acknowledged a possible nexus between his childhood experiences and how he behaves in the workplace and also with his long term drug use, but he asserts that he does not have ongoing issues regarding the sexual or physical abuse. 3. BFL demonstrates an unwillingness to acknowledge the relevance of these issues for fear of the impact on his application. 4. Dr Bench however is of the view that BFL has underlying issues, including anger, that he needs to address in psychotherapy, and that the counselling sessions up until the time of the hearing were insufficient for that purpose. Dr Bench accepted as a potential hypothesis that BFL's workplace complaints were due to unresolved anger but the reason that Dr Bench did not give this hypothesis any loading was because BFL was not in child related employment.
20. In relation to this issue, counsel for the applicant made the following submissions: 1. The view of Dr Bench as outlined is the only evidence available regarding the need for BFL to undergo psychotherapy and it does not support the contention that if BFL does not have ongoing treatment he will pose a risk to children. 2. It was open to the respondent to seek an assessment of BFL by its own expert, but it did not do so.

BFL's marital relationship

1. In his statement dated 25 March 2014 BFL states that he has been in a relationship with his wife, (Ms L) since his trial in respect of the index offence. He states that he lived with Ms L on his release from prison and they later married. He said that the relationship was strained due to the inability of the couple to have children and they temporarily separated in 2003.
2. In his statement dated 25 March 2014 BFL states that at the time of his marital separation he became involved with Ms X, the protected person in the AVO referred to paragraph 66 of this decision. He refers to the AVO being issued in 2003. However according to the documents tendered at this hearing, the only AVOs of which the Tribunal has been informed were made in 2001 -2002. BFL was not questioned about this discrepancy during the hearing and I draw no adverse inference from BFL's statement in this regard.
3. Ms L attended the Tribunal hearing on each day in the company of BFL. In his report dated 4 May 2014 Dr Bench notes that Ms L accompanied BFL to the appointment with Dr Bench.
4. In his report dated 4 May 2014 Dr Bench reports BFL as saying that he is in a happy and committed relationship with Ms L.
5. As an annexure to his statement BFL provides a number of character references including a reference from Ms M who states that she is the sister of Ms L. She states that she has viewed the relationship between BFL and Ms L to "grow from strength to strength" and that her sister is very happy in the relationship. Ms M states that she has become close to BFL and that her children often attend outings with him.
6. Counsel for the respondent cross examined BFL about the strength of his relationship with Ms L and in particular why he had not sought her support and counsel when he was stressed and resorted to the use, or planned use, of heroin since his release from custody. BFL's responses to this question included that he had made a decision to use heroin and that he did not want to distress his wife.
7. Counsel for the respondent also questioned BFL as to why he had only recently disclosed to his wife his experience of child sexual abuse. He said that he told her about the abuse after she disclosed to him that she had suffered some physical abuse as a child. He said that his disclosure was in the context of publicity about the Royal Commission into Institutional Child Sexual Abuse and that he was not able to explain why he had not disclosed this matter previously.
8. In his written submissions counsel for the respondent states that no criticism is made by the respondent of BFL's non disclosure of the sexual abuse.
9. In his written submissions on behalf of BFL, counsel submits that one reason why there is "minimal or no likelihood" of BFL repeating the index offence is his long term committed relationship with his wife who is aware of the BFL's index offence and also his criminal and drug abuse history.

The impact on a child of a repetition of the offence

1. BFL has no convictions involving an offence against a child and nor was the Tribunal provided with any evidence of complaints regarding children.
2. BFL committed the index offence in a house where there was a 5 years old girl present. The evidence given at the trial of BFL in relation to the index offence indicates that the child attempted to allow the Rottweiler dog back into the house but was prevented from doing so. In his sentencing comments, DCJ Patten states that whilst it is unclear the extent to which the child witnessed the conduct of BFL towards her mother, "it is clear that there was sufficient disturbance for her to be concerned about her mother's welfare".
3. Counsel for BFL notes that there is no history of BFL offending against children and submits that the question of impact on children is not relevant.
4. I am satisfied that the commission of the offence under the same circumstances would have had an adverse effect on the child, even though she was not a direct victim of the offence.

Any information given by the applicant in, or in relation to, the application

The report of Dr Bench dated 4 May 2014

1. In response to a specific question as to whether BFL "poses a real and appreciable risk in the sense of a risk to the safety of children in the workplace or at all" Dr Bench concludes in his report dated 4 May 2014 that BFL "does not pose a real and appreciable risk to the safety of children either in the workplace or at all". In reaching this conclusion, Dr Bench mentions the following matters as relevant indicators: 1. BFL said that he has never worked with children and that his current position does not involve work with children. He said that his current clients are aged between forty and eighty years of age. 2. Apart from the index offence, BFL has no history of sexual offending and no history of violent offending. However Dr Bench notes that there is some conflicting evidence as to whether or not BFL engaged in violent and threatening behaviour to the victim at the time of the index offence. 3. BFL's criminal history and extensive collateral evidence contain no indication of offences against children. 4. BFL is abstinent from drugs and is in a supportive marital relationship.
2. Dr Bench was cross examined with respect to his view that BFL has no history of offending against children, with particular reference to the presence of the 5 year old girl at the time of the index offence. Dr Bench acknowledged that the girl was likely to be frightened at the time of this offence but said that he does not consider her to be a victim of the offences.
3. In response to the specific question of whether, in his opinion, Dr Bench considers in all circumstances that BFL poses a risk that is greater than the risk of any adult preying in a child, in his report dated 4 May 2014 Dr Bench expresses the view that if BFL remains abstinent from illicit substances he does not pose a greater risk than the risk of any adult preying on a child. In response to this question he notes the following: 1. BFL's extensive criminal history is closely linked to his substance dependence. He does not meet the diagnostic criteria for anti social personality disorder or paedophilia and has no history of offending against children. He does not have a major mood, anxiety or psychotic disorder. 2. BFL has a number of protective factors including his long term committed relationship with his wife who is wholly aware of the index offences. He has a history of stable employment and has devoted his life to the caring professions with an expressed desire to help others in need. 3. Dr Bench states that in his opinion any relapse into illicit drug use would potentially increase BFL's risk to children, but opines that any increased risk would be minor given the absence of any previous offending against children.
4. In his report dated 6 October 2014 Dr Bench states that his concerns about relapse of BFL's substance abuse were tempered by the knowledge that BFL was actively involved in a methadone maintenance program, including having sought an increase in his dosage because of current stressors, was attending Alcoholics Anonymous and his general practitioner was aware of his substance abuse history.
5. In respect of Dr Bench's comments about BFL's general practitioner, I note that in his letter dated 27 May 2014 Dr Kirkpatrick states that he has treated BFL using methadone since 2002 and he assumes that at some stage in his life BFL was addicted to heroin. However he also states that he has "no details" of BFL's drug use history. Nor does he indicate that he is aware of BFL's drug use relapses or arrest for possessing heroin.

Personal References

1. BFL provided a number of personal references as annexures to his statement dated 25 March 2014. These were: 1. A letter dated 15 November 1997 addressed "To Whom it May Concern" from Mr Len Steele, a Drug and Alcohol Worker at the Cessnock Correctional Centre which refers to the following: 1. Mr Steele had known BFL for some four years and he was close friend of Mr Steele and his family. 2. BFL assisted Mr Steele in his role as a Drug and Alcohol counsellor at the Cessnock Correctional Centre and encouraged inmates to participate in groups. 3. Mr Steele knew BFL prior to the latter's imprisonment through Alcoholics Anonymous meetings and church and he adds that BFL and his wife are "dedicated Christians". 4. At Alcoholic Anonymous meetings and at church there are many "young people from the rehabilitation centres" and that BFL "communicates with these people in an exceptional manner and is able to show empathy with them". 5. He also states that BFL has spoken to students at Morisset High School and was said to be "able to communicate with the students extremely well". 1. A letter dated 10 October 2008 addressed "To Whom it May Concern" from John Soper, an employment consultant stating that he had known BFL for more than 10 years and had found him to be "reliable and trustworthy". He states that BFL has assisted people of "all ages and types", including "the most difficult clients" to find work. He states that BFL has assisted his four children to learn table tennis and soccer skills. The letter includes a note, dated 24 October 2008, to the effect that he is aware the document would be sent with an application to the Children's Guardian. In his submission BFL indicates that the reference was provided after he was dismissed from employment with Mae-Wel and was considering making an application to the Children's Guardian. 2. Letter dated 16 October 2008 addressed to "The Manager working with children" from the Reverend Rod Moore, Chaplaincy Coordinator, Corrective Services NSW, stating that he had known BFL since the time of his incarceration in Cessnock Correctional Centre in the mid 1990s. He states that the crimes of BFL had not involved children "and indeed I have never had any reason to believe that he would present a threat or risk in that area". 3. A letter dated 18 October 2008 from Mrs Lieutenant Colonel Lingard of the Salvation Army who states that she has "known and been closely associated" with BFL for at least 12 years. She states that during the period of his rehabilitation she has found BFL to be "thoroughly reliable and dependable" and has "never had cause to doubt" his integrity. 4. A letter dated 10 March 2014 addressed "To Whom it May Concern" from the Reverend Rod Moore stating that on 16 October 2008 he wrote a letter of support of the suspension of BFL's status as a person prohibited from working with children. He states that his position has not changed from that time and "has been vindicated in that (BFL) continues to moved forward in his life making a positive contribution to the wider community". 5. A letter dated 15 March 2014 addressed "To Whom it May Concern" from Mr Steele who states that he has known BFL since 1993 and that he is a "close friend" to Mr Steele and his family. In addition to the matters canvassed in his letter dated 15 November 1997, Mr Steele refers to BFL's work after his release assisting people with employment and referring them to treatment after his release. He states that he has "total faith" in BFL. 6. A letter dated 25 March 2014 addressed "To Whom it May Concern" from Mr Rex Bolte of the NSW Combined High Schools Sports Association stating that BFL had recently lectured at Morisset High School to the Year 11 & 12 students targeting alcohol and other drugs. He states that BFL "spoke at three sessions and there was an outstanding response from the students. We wish to gain his services later this year and again in future years". He recommends BFL "to any employer specialising in this professional area". 7. An undated letter addressed "To Whom it May Concern" from the sister of the BFL's wife. She states that she and her family have seen the relationship between Ms L and BFL "grow from strength to strength" and that Ms L and BFL are "committed to their marriage". She states that she has "grown close" to BFL, that her children "absolutely love" BFL who "often takes them fishing or to the movies" .
2. BFL also supplied a letter dated 18 November 2008 addressed to New Horizons, from the division of Operations, External Relations and Employment Screening Unit, Corporate Governance and Risk Management, NSW Department of Health advising that a risk assessment of BFL had been conducted and it had been decided that he did not present any risk to clients in his role of Residential Support Worker at New Horizons.

Any other matters that the Children's Guardian considers necessary.

1. As noted above, counsel for the respondent submitted that in failing to provide details of workplace incidents and of his drug usage, BFL has failed to comply with s.28(5) of the Child Protection (Working with Children) Act 2012.
2. Counsel for the respondent also submits that the nexus between BFL's underlying issues arising from his childhood abuse and behaviour in the workplace is unexplored but that BFL requires psychotherapy regarding these matters. As BFL has only just commenced psychotherapy, his application for the enabling order is premature and should be refused.

Conclusions in respect of the matters set out in s.30(1) of the Child Protection (Working with Children) Act.

Seriousness of the index offence and the time since the offence

1. The index offence comprises two counts of non consensual sexual intercourse in the context of relationship. These are serious offences. That said, I am satisfied that the offences are not of the most serious category of offences of this nature. The time since the offence and the lack of any repeat offences of this nature moderate, but do not extinguish, the extent to which the seriousness of the offence points to BFL posing a risk to children that is greater than the risk of any adult preying on a child.

Conduct of BFL since the index offence

1. BFL has history of drug addiction and BFL was using heroin around the time of the offence. The Tribunal has been provided with much evidence regarding BFL's use of illicit drugs. In summary: 1. BFL has participated in a number of drug rehabilitation strategies and has provided references from practitioners in the drug rehabilitation field attesting to his rehabilitation efforts. He is currently in a methadone program. 2. BFL states that he has completed an Advanced Certificate in Alcohol and Other Drug Studies and a Diploma in Community Welfare Services (Alcohol and Other Drugs Work). Whilst he does not provide evidence of those qualifications he was not challenged regarding these matters during the hearing and in the absence of any evidence to the contrary, I accept this to be true. 3. BFL provides a reference attesting to his effectiveness in addressing high school students about drug and alcohol issues. 4. Since the index offence BFL has was been arrested in 2012 for possessing heroin. 5. BFL was not completely forthcoming to the Tribunal about his use of illegal substances since the index offence. Under cross-examination he admitted to more frequent use than he initially indicated. However the frequency to which he admitted was much less than that indicated in the Police Facts tendered in respect of his arrest in 2012. BFL's evidence on this matter is somewhat contradictory. In his oral evidence he said both that he had used heroin twice between the time of his release and his arrest for possessing heroin, and on another occasion he said that he had used on three or four occasions. In his oral evidence he named occasions on which he had used heroin as being soon after release, and around 2000 when he and his wife were confronting fertility issues. However in his statement dated 30 September 2014 he says of the arrest in 2012 "I had used heroin on two separate occasions leading up to that arrest, I think during sometime that year". 6. BFL's explanation as to why he told the arresting officers that his use of heroin was more than he now claims it actually was is not convincing. 7. As submitted by counsel for the applicant I accept that the distance travelled by BFL to obtain heroin on the occasion that he was arrested for its possession suggests that he did not have a regular, accessible supplier of the drug. 8. BFL's maintenance of the treatment program with Dr Kirkpatrick supports the conclusion that he is not a frequent user of illicit drugs and Dr Kirkpatrick refers to BFL as "extremely compliant" with the requirements of the methadone program, and as an "exemplary patient". However the evidence does not establish whether or not Dr Kirkpatrick knew of BFL's occasions of using heroin or his arrest for the possession of heroin. 9. Dr Bench has provided a professional opinion that any relapse into illicit drug use would potentially increase BFL's risk to children, but notes that any increased risk would be minor because he has no previous offences against children. 10. Dr Bench also opines that BFL meets the diagnostic criteria for polysubstance dependence in remission. He maintained that diagnosis even after it was confirmed that BFL used heroin more often than he initially disclosed to Dr Bench. 11. Dr Bench also expresses the view that BFL's supportive relationship with his wife is a protective factor him. I accept this proposition, but note that BFL's admitted use of heroin has occurred since he has been in that relationship and he did not confide in his wife about his intended use of the drug.
2. Dr Bench's opinion that BFL's risk to children could increase if he relapses to illicit drug use bears close consideration in relation to whether or not to grant the enabling order. On the one hand I am satisfied that BFL has a number of protective factors in respect of preventing possible relapse. On the other hand, he has relapsed into some use, about which he was not truthful to the Tribunal or Dr Bench and his evidence about the frequency and timing of his relapses is inconsistent. He has stated that the relapses have been at times of stress and it is not clear that his treating methadone prescriber is aware of his relapses.
3. BFL bears the overall burden of proving on the balance of probabilities that he is not a risk to children. The level of risk in question is "greater than the risk of any adult preying on a child" (Commission for Children and Young People v V supra). In reaching my conclusion a paramount consideration must be the "safety, welfare and well being of children, and, in particular, protecting them from child abuse", including abuse resulting from physical or sexual assault as well as acts likely to cause psychological harm. BFL committed the index offence at a time when he was using heroin and Dr Bench is of the opinion that a relapse into drug use could increase his risk to children. I have concluded on the basis of all of the material outlined that the strength of the evidence provided by BFL that he will not relapse into drug use and thereby pose a risk to children is insufficient to satisfy me on that point.
4. In respect of BFL's conduct in the workplace I note the following: 1. The evidence supports a conclusion that BFL has had a number of workplace issues about relationships with his colleagues. 2. BFL also has come to notice regarding related to dealings or alleged dealings with clients. Of these matters the material before me indicates that of these four incidents only the matter of pulling/pushing a client was confirmed to have occurred. 3. BFL was dismissed from employment at the Salvation Army Employment Plus when he came under adverse notice following his final warning letter and he is currently in receipt of his third and final warning letter from his current employer. 4. Counsel for the respondent contends that the effect of BFL's experience of childhood abuse is such that it predisposes him to anger which he might use against child clients. I reach no conclusion about that proposition. 5. In compiling his written reports, Dr Bench did not take into account the information supplied by Salvation Army Employment Plus, the employment from which BFL was dismissed, nor the material provided by New Horizons, BFL's current employer. Under cross examination he said that having then considered that material he did not change his assessment.
5. An enabling order would enable BFL to work with children in any context. I have been provided with information alleging misconduct by BFL in his workplaces over a period since 2002. Some of the events refer to BFL's behaviour as unprofessional, aggressive, threatening and intimidating. These matters have resulted in his dismissal from one place of work, and BFL is on his third and final warning in his current workplace. BFL has not made detailed submissions regarding the incidents and allegations involving his conduct in the workplace. He has denied some of the events and provided alternative explanations including that he has been bullied and harassed in the workplace.
6. As noted above, BFL bears the overall burden of proving on the balance of probabilities that he is not a risk to children. The level of risk in question is "greater than the risk of any adult preying on a child" (Commission for Children and Young People v V supra). BFL has not worked with children so it follows that his workplace behaviour has not affected child clients. However, it is my view that the number and nature of the issues raised regarding BFL's work history are such that there must be a concern that if he were working with children, similar incidents would pose a risk to the well being and welfare of children that is greater than that of any adult. I am not satisfied that BFL's evidence regarding the workplace allegations and incidents is sufficient to outweigh this concern. Nor am I satisfied that the opinion of Dr Bench, in the absence of detailed consideration of the matters raised by his employers, is sufficient to outweigh this concern.

BFL's failure to disclose matters

1. Counsel for the respondent alleges that in failing to provide certain information, BFL is in breach of his obligation under s. 28(5) of the Act. In particular he notes that BFL failed disclose his use of heroin since the index offence and also failed to provide full disclosure about workplace incidents.
2. In respect of the heroin use Dr Bench is of the view that it does not increase the risk of BFL relapsing into heroin. However, as the index offence was committed around a time when BFL was using heroin it is reasonable to expect that he would have provided full details regarding his subsequent use of that drug.
3. In respect of the workplace incidents, counsel for the applicant submitted to the effect that some of the reports of incidents had not proceeded to any action and further that BFL could not be expected to recall and give account of workplace complaints that did not proceed to formal disciplinary action or adverse findings and which occurred many years ago. However some matters raised in the New Horizons documents occurred since 2011. Whilst BFL makes some reference to some New Horizons matters in his statement the references do not put the facts and explanations squarely before the Tribunal.
4. As noted above, in this application BFL bears to onus proving his case. It is reasonable to expect that in an application seeking an enabling order to work with children BFL would have put to the Tribunal any matters related to his work performance and where those matters cast some doubt on his suitability to work with clients he would have squarely addressed those matters in some detail.

The age of BFL and the victim at the time of the index offence and the current age of BFL and any matters relating to the vulnerability of the victim

1. Regarding the period of time since the index offence and the age of the BFL at that time, I am satisfied that the passage of time in conjunction with BFL's relatively clear criminal record since that time is such that those matters do not support a conclusion that it is more likely than any adult to pose a risk to children.
2. I am also satisfied that there are no matters related to the age or vulnerability of the victim that support the conclusion that BFL is a risk to children.

Whether BFL knew, or could have known, that the victim was a child

1. The victim of the index offence was not a child.

The seriousness of BFL's total criminal record

1. BFL's extensive criminal history is predominantly related to his drug abuse history and in addition to the index offence includes offences related to drug use and supply and property offences. He has received custodial sentences in respect of offences committed prior to the index offence. Taking into account the length of time since he committed a serious offence I am not satisfied that the seriousness of his total criminal record is such that it supports a conclusion that he is more likely than any adult to pose a risk to children.

The likelihood of a repetition of the index offence and the impact on a child of a reoffence

1. Dr Bench was of the view that so long as BFL's drug use remains in remission, there is a low likelihood of reoffending. However BFL's evidence, including that taken into account by Dr Bench, is not consistent in relation to his drug use. The supporting documentation from his current methadone provider is diminished to the extent that it fails to illustrate the doctor's awareness of BFL's actual drug use history, including his relapses and arrest for possessing heroin.
2. Regarding the impact on a child of any repetition of the index offence, I am of the view that as the presence of child in the house did not deter BFL from committing the index offences, it is possible that any repetition of similar offences could aversely affect a child. BFL did not address this matter in evidence or in submissions.

Any information given by the applicant.

1. The evidence in chief of BFL is discussed throughout this judgement. I have given it due consideration. In particular I note that BFL has supplied a number of references from reputable and informed persons regarding his character, his efforts at rehabilitation and his commitment to assisting others.

Any other matters that the Children's Guardian considers necessary

1. Counsel for the Children's Guardian expresses the view that BFL has some unresolved issues to deal with, perhaps through psychotherapy, as a result of his experience of childhood abuse. He submits that the application by BFL is "premature".

Conclusion and orders

1. The Child Protection (Working with Children) Act 2012 provides that the safety, welfare and well being of children, and in particular, protecting them from child abuse, is paramount. The Act does not define "child abuse" and no submissions were made on that point in this matter. However, for the reasons set out at paragraphs 12-14 of this decision, I have concluded that "child abuse" includes actions likely to cause physical or psychological harm and is not restricted to sexual abuse.
2. In reaching my conclusions, my primary consideration is the safety, welfare and well being of children, not the punishment of BFL.
3. The factors that I must take into account are listed in subsection 30(1) of the Child Protection (Working with Children) Act 2012 and are not weighted. I have taken each of them into account. Having regard to these matters and the evidence put before the Tribunal and including the matters canvassed in the preceding sections of this judgment, my conclusions are set out below.
4. There are a number of matters in favour of granting BFL the order he seeks. These are, in summary: 1. The long period of time that has elapsed since the index offences. 2. The fact that the victim of the index offence was not a child and BFL has not been convicted of any offences against children. 3. The fact of just one arrest since the last index offence and the lack of any charges similar to the index offence. 4. BFL's completion of and current involvement in drug rehabilitation programs and the changes he has made in his lifestyle since the time of the offences. 5. BFL's completion of a number of tertiary courses including courses related to substance abuse and welfare services. 6. BFL's involvement in assisting others to avoid substance abuse. 7. The nature of BFL's work roles which have involved assisting others to obtain employment. 8. The positive references to BFL's involvement with children of relatives and in presenting to secondary school students. 9. The age of BFL. 10. BFL's stable marital relationship 11. The purpose for which BFL seeks the order, being to allow him to continue in his current work which does not involve work with children. 12. The assessment of Dr Bench that BFL is a low risk of reoffending so long as he does not resume drug abuse.
5. There are also a number of matters that suggest that the application should be refused. These are, in summary: 1. The offences which, under the Child Protection (Working with Children) Act 2012 render a person disqualified from being cleared to work with children include offences other than those involving a child as a direct victim. This reduces the weight to be placed on the fact that the index offence did not involve a child. 2. The index offences for which BFL was convicted are serious. Whilst they were not committed against a child they were committed when a child was present in the house in circumstances where the child was likely to be adversely affected. 3. Whilst BFL acknowledges the seriousness of the offences constituting the index offence he denies the facts as presented to the jury and continues to assert that sexual intercourse was consensual. 4. There would be a significant harmful impact on a child if a similar offence was committed under similar circumstances. 5. BFL was not a reliable witness. He did not initially disclose to the Tribunal or to Dr Bench relevant matters including full details regarding his drug use, his employment record or his experience of sexual abuse. 6. Whilst in his second report Dr Bench addressed the matter of BFL's experience of sexual assault and his admitted drug use his reports do not take into account all of the matters raised in relation to BFL's work history. Whilst these matters were raised in cross examination I am not satisfied that Dr Bench was able to afford them the degree of consideration that would have been possible had he known about them previously. 7. Dr Bench is of the view that BFL's low risk of reoffending is contingent on his drug use remaining in remission. BFL has given inconsistent evidence regarding his drug use and whilst it is in BFL's favour that his methadone prescriber describes him as an exemplary patient, there is no indication as to whether or not he is aware of BFL's arrest for possessing heroin. 8. Dr Bench concedes that it is possible that BFL's workplace issues could result from unresolved issues arising from his past abuse and that the therapy he has received so far is insufficient to fully deal with those matters. 9. The documents provided by BFL's employers provide evidence of significant workplace incidents related to BFL's difficulties in dealing with matters involving interpersonal conflict. Some of these incidents have involved BFL's clients. I have been given no evidence that would lead me to conclude that if BFL's workplace involved children his behaviour would be different from that indicated in the documents and discussed above in this decision. I am satisfied that such behaviour in a workplace could cause psychological or emotional harm to a child.
6. The conclusion of Dr Bench regarding the low risk of the likelihood of a repetition of offending by BFL is significant evidence in favour of granting BFL the order he seeks, However this is not determinative of the decision of the Tribunal. If this were the case, there would be no need for the Child Protection (Working with Children) Act 2012 to list additional matters to which the Tribunal must give consideration.
7. This is a finely balanced matter. However in this jurisdiction the burden is on BFL to prove, on the balance of probabilities to the Briginshaw standard, that he does not pose a risk to children greater than the risk of any adult preying on a child. I am of the view that taking into account the issues raised above, and in particular matters related to BFL's failure to fully disclose relevant matters, his possible relapse into drug abuse and his workplace behaviour BFL has not proved, on balance, that he does not pose such a risk.
8. The order of the Tribunal is that the application is refused. 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: 06 March 2015