BFN v NSW Office of Children - Children's Guardian

reasons for decision 1The applicant is a disqualified person under subsection 18(1) of the Child Protection (Working with Children) Act 2012 and he has made an application for an order under subsection 28(1) of the Act declaring that he is not to be treated as a disqualified person for the purpose of the Act. The order is known as an enabling order and if made will have the effect of granting the applicant with a working with children check clearance to work in child related work as defined under section 6 of the Act. 2The offences that bring the applicant within subsection 18(1) of the Act is his conviction on 2 March 1976 of two counts of carnal knowledge. These offences are disqualifying offence falling within clause 1(1)(i) of Schedule 2 of the Act. 3The applicant was convicted in the District Court of New South Wales. The Court deferred his sentence on condition he entered a recognisance to be of good behaviour for 12 months. The victim of the offences was the applicant's girlfriend, who has continued to be his partner up until today. 4On 6 March 2014, on the application of the applicant, I made an order granting a stay of the decision of the respondent to refuse his application for a working with children check clearance. The stay was granted pending the determination of this application. 5The applicant's partner has parental responsibility for the son of her daughter and that of the applicant (grandson). The grandson is four years old and has been residing with the applicant and his partner for the last three years. The applicant sought a working with children check clearance, as he was required to do by the Department of Family and Community services. 6There is no dispute that the tribunal has jurisdiction to hear and determine the applicant's application. 7The applicant's application was initially heard on 14 May 2014. At the conclusion of the hearing, by consent, I adjourned the hearing to today's date so that the applicant could file and serve an expert risk of harm report from an appropriately qualified person. That report was filed and served on 24 June 2014. It is a report by Dr Emma Collins, a clinical and forensic psychologist. Dr Collins was made available today and was cross-examined by the respondent. 8The respondent opposes the making of the order sought. 9I have read the material that has been filed. The applicant tendered into evidence a statement he made and a statement made by his daughter. He also tendered into evidence some references and he gave oral evidence and was cross-examined by counsel for the respondent. The applicant's partner also gave evidence on the previous hearing date and was cross-examined by counsel for the respondent. 10The respondent has tendered into evidence a number of bundles of documents containing copies of the applicant's criminal record together with information that the respondent has obtained in the course of its inquiries for the purpose of these proceedings. This material includes documents from the Department of Family and Community Services. 11A further small bundle of documents filed today. Again, this bundle contains documents the respondent has obtained in the course of its enquiries about the applicant. 12The Child Protection (Working With Children) Act came into force on 15 June 2013, its object is to protect children by not permitting a certain person to engage in child related work and requiring persons engaged in child related work to have a working with children check. Section 4 of the Act provides that the safety, welfare and wellbeing of children and in particular protecting them from child abuse is the paramount consideration in the operation of the Act. 13For the purpose of this application the relevant section, as I have already indicated, is subsection 28(1) that makes provision for applications for enabling order. Subsection 28(7) of the Act provides that: "Where an application for 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 children." 14That 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 the safety of children. The meaning of the word 'risk' was considered by his Honour Young CJ in Equity in Commission for Children and Young People v V (2002) NSWSC 949 at 42 his Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection Prohibited Employment Act 1998. 'What one is looking for is whether in all the circumstances there is a real and appreciable risk in the sense of a risk that is no 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.' 15The former Administrative Decisions Tribunal construed the meaning of the word 'risk' as it appeared in subsection 33J(1) of Part 7 of the now repealed Commission for Children and Young People Act 1998 to have the same meaning. In my view, the same meaning applies to the word 'risk' as it appears in the current Act. Subsection 30(1) of the Act sets out the matters that the tribunal is required to take into account for the purposes of determining an application made under subs 28(1). 16The first matter for consideration in subs 30(1) is the seriousness of the applicant's disqualifying offence. As I have already mentioned the applicant was convicted of two charges of carnal knowledge. He pleaded guilty to those charges. One charge stated that the offending conduct occurred between 1 June 1973 and 31 July 1973. The other charge stated the offending conduct occurred between 1 August 1975 and 31 August 1975. The victim as I have mentioned is the applicant's partner. At the time of the first in time offending conduct she was thirteen years of age. In regard to the second offence, she was 15 years of age. The applicant was 19 years of age at the time of the first offence and 21 years of age at the time of the second offence. 17The circumstances surrounding the offending conduct is set out in the statement the victim gave to police on 2 December 1975. In that statement she said she had known the applicant for about four to five years and that she started going out with him when she was twelve. She said that she started having sexual intercourse with the applicant after her 13th birthday. She described when this occurred. She said she was staying with a friend at her place, she did not know where the parents of her friend were that night but the applicant and her brother were at the home. She said: "I forgot whose idea it was but I slept in a single bed in one of the bedrooms with"-- The victim named the applicant and went onto say the applicant: --"told her to turn around and cuddle him. She did this and they started kissing and then had sexual intercourse. After this occurred the victim said she would meet with the applicant and have sexual intercourse about once a week." 18At the time she made her statement she was pregnant with her first child, the father being the applicant. The victim said she did not have sexual relationship with anyone else. 19The victim said that she had heard her father say to the applicant at the time they started going out, "Keep away from her, you're a grown man and she's only a baby." 20I note, however, in the police record of the time, it is stated that the parents of the victim and the applicant were both aware of their relationship and it was the sister of the victim who had reported the matter to police resulting in the applicant being charged and convicted. In my view, the disqualifying offence of which the applicant was convicted was serious as it involved a child. 21On the information before the tribunal there is no evidence of violent or predatory conduct. However, it did involve a serious breach of the applicant's position as an adult and a friend of the victim and her family. In his evidence before the tribunal, the applicant said he was not proud of what he did and that he was young and stupid. 22The next factor to take into account is the period of time since those offences and the applicant's conduct since that time. It is now almost 49 years since the offending disqualifying conduct occurred and there have been no further offences of a sexual nature towards a child or an adult since that time. However, the applicant does have an extensive criminal record up until July 2001. I will deal with that shortly. 23I have already dealt with the age of the applicant and the victim at the time of the offending conduct. She was 13 and 15 respectively and the applicant was 19 and 21 years. They have remained together since that time and have had five children. The victim's vulnerability was her age and as I have mentioned she was of an age where she trusted her elders and friends of the family. The difference in age between the applicant and victim was six years, which is a substantial difference and there is no question that the applicant knew the age of the victim. 24The applicant is now 60 years of age. The applicant's total criminal conduct as I have explained is extensive. He has one conviction for vagrancy in 1973, this is the only offence prior to the disqualifying offences, but the applicant has numerous convictions since September 1978 to July 2001. These include driving offences, stealing, receiving and larceny. The driving offences include culpable driving and drink driving offences. However, the offences that are of most concern are his 1980 offence of neglecting to provide adequate and proper medical aid and his April 1999 offence of assault. The applicant was sentenced to three months hard labour in regard to the offence of neglecting to provide adequate and proper medical aid. This offence involved the applicant's son who was fifteen months of age at that time. The police fact sheet in regard to this incident states: 'The son had poured a cup of boiling water over himself and suffered severe burns over 30% of his body. The applicant's partner and the mother of the child said they should take the child to hospital but the applicant declined to have the child treated. The following day a neighbour saw the applicant's son and told the applicant's partner that the child needed medical treatment. When the neighbour returned and saw that the child had not been taken for medical care she took the child and the applicant's partner to the hospital.' 25The police fact sheet also states that when the applicant: '--was spoken to by police he said he had not taken his son to be treated because he feared he and his partner would lose custody of their son as there had been prior problems with the then Youth and Community Services with their other children.' 26The respondent tendered the police fact sheet into evidence today. Prior to this, the applicant had given evidence about the incident. His evidence in regard to what occurred on that day is essentially consistent with what is contained in the fact sheet. The material filed today, however, also indicates how seriously the Court regarded the applicant's conduct at that time. As noted in the transcript of the hearing, the Court expressed concern about the applicant's explanation for not having taken his son for medical treatment. The Court said the applicant's explanation of not wishing to take him because of fears of the child being taken away was not satisfactory and that to delay treatment was "very very serious indeed". 27The April 1999 offence involved the applicant's partner, being the victim of the disqualifying offence. The applicant pleaded guilty to this offence and was fined $200. The police record of this incident states as follows: 'On the night in question, the applicant and victim were at their home when an argument developed over some obscure matter. The argument became heated and the applicant grabbed the victim by the hair and her jumper. The victim then attempted to ring police but the applicant cut the phone cord with a knife. He then left the house through the front door to get some beer and while he was outside the victim locked the door. A short time later, the applicant attempted to get back into the house and finding the door locked he forced it open causing the door jamb to break. Upon re-entering the house he threw a punch at the victim which connected with the back of her head. He then left the house and was driven away by a friend. The applicant was arrested at his house at 12.50am, he was well affected by alcohol and when told of the complaint made against him he said, 'That's bullshit I grabbed her by the shirt that's all I don't bash women.' He was then led from the house and as he walked towards the police vehicle he called out to the victim in a loud voice, 'You bitch you bitch you're still a slut I'll get you for this.' The applicant was questioned at the police station and again denied the offences saying, 'I don't bash women.' As a result of the assault the victim suffered slight pain to her head but suffered no visible injury.' 28In his evidence the applicant explained that as a young man he began drinking and his offending conduct occurred when he was intoxicated. He said in 2001, following his last conviction for drinking while disqualified from holding a licence he attended a rehabilitation centre and has not drunk since, with one exception which was a taste and no more. He said he saw that he could no longer live like he had and he has been committed to change ever since. He now works to assist others within his community to address their alcohol and drug problems. 29On the first day of hearing, the applicant's partner, Ms A, also gave evidence. In her evidence-in-chief she said that at first her relationship with the applicant was good but later it was bad. She said the applicant was out drinking with his mates and became intoxicated, he was violent and she was physically abused. However, she said with great emphasis he had taken the effort to change his life and stopped drinking. In her words she said his life had changed dramatically. In cross-examination Ms A said that when the applicant got drunk he would throw a plate and slap her. She agreed that this would happen when the children were present and that she had called the police a number of times and to have him charged. She said they separated several times with the longest time being when he was in rehabilitation. I recollect from the applicant's evidence that this was for a couple of months, it was certainly not over a very long period of time. 30She said the applicant never hit their children, or grandchildren, as she was the disciplinarian in the home. 31In regard to the likelihood of any repetition by the applicant of the disqualifying offences of which he was convicted, in my opinion, is very low given the circumstances surrounding the offending conduct and the fact that he has not been charged with offences of a similar kind since then. 32There is information contained in the material summoned from the Department of Family and Community Services of a complaint made by one of the applicant's children. However, it is also clear that the complaint has either been misunderstood or incorrectly recorded as subsequent entries in that material makes it clear that the complaint was not made against the applicant but the applicant's stepfather. There are also records of incidents of a similar kind made in regard to the husband of one of the applicant's daughters. 33Of concern to the respondent is the applicant's 1980 and 1999 conduct, his conduct towards his daughters in 1993 when they were in a refuge and unable to go home and a recent incident involving the applicant's three year old grandson falling off a quad bike. 34I have already dealt with the 1980 and 1999 incidents. The 1993 incident arose from the applicant's daughter having run away from home. He is alleged to have said to her that if she ran away again she need not come home. It is also alleged dragged an elder daughter across the room in anger and called her 'sluts and tarts' and not to 'wear her dress like a whore.' The quad bike incident occurred last year. The applicant explained it was an accident. His grandson was on the bike when it tipped - he was there. His grandson was taken to hospital and his leg was plastered. 35While I understand the respondent's concerns, in my view, these should be seen in the overall context of the applicant's conduct and in doing so it is necessary to make a finding as to the applicant's evidence. 36The respondent questions the veracity of the applicant's evidence. However, in my view, having heard his evidence and having regard to his background I found him to be forthright and open and gave evidence to the best of his ability and recollection. He has at all times been fully cooperative in these proceeding and I am sure he fully understands the consequences of his past conduct and what will happen if he digresses in any way in the future. 37His offending conduct prior to 2001 was clearly largely attributable to his excessive drinking. This is by no means an excuse. His most recent violent conduct was that in 1999 involving his partner. It is clear from the police record that what he said and did at the time was done when he was highly intoxicated. Since then he has taken steps to stop drinking and change his life. He has not drunk since 2001. This is reflected in the references he has provided. He is clearly now well regarded within his community and has the full support of his long term partner. 38Finally, I note the conclusions reached by Dr Collins who has prepared a lengthy report that sets out her assessment as to risk and also details of the information the applicant gave her during his face-to-face assessment with her. These details are essentially consistent with the account that the applicant has given during the course of these proceedings before the tribunal. Dr Collins has assessed the applicant at low risk and at [47] of her report she says the applicant: ' --is assessed to be at low risk of sexual recidivism based on the presence of very few risk factors none of which are considered to be factors of significance. His sexual offending was in the context of an ongoing relationship that he maintains to date. He is not assessed to be sexually deviant in any way. I also note that the facts information perused discussed his previous domestically violent behaviour towards his partner and to his children. Whilst the applicant maintains he did not hit his children other than slap on the bum it is difficult to determine if his behaviour was abusive towards the children at times or on any level. It is prudent to assume some level of verbal and physical abuse if behaviour commensurate with alcohol use although I note the denials of his children regarding physical abuse. Notwithstanding this the issue of physical abuse is important to discuss even that the applicant has to be assessed regarding the presence of risk to physical and emotional needs of children also. His prior abusive behaviour within the home occurred in the context of alcohol intoxication. There are no recent episodes of violent reports and FACS have raised no issue with the child who is in the applicant and his partner's day to day care. The only recent allegation regarding the child relates to an incident with a quad bike which was accepted as FACS to be an accident." 39At [48] Ms Collins said: 'Any risk towards children would be actualised should the applicant recommence substance use. This seems highly unlikely given he has been substance free since 2001 and as an alcohol and other drugs worker he has insight into the knowledge of substance abuse issues. It is also my view that the applicant has made a considerable effort to care for (his grandchild) as compared with the comparably reduced parenting of his own children due to alcoholism.' 40In my view, having regard to all of the evidence that is before the tribunal, the requirement of s 4 of the Act (the welfare and wellbeing of children is a paramount consideration in the administration of the Act), I find that the applicant has discharged the onus that is placed on him. In this regard, I stress that I had not taken into account the impact it would have on the applicant's grandson if this order was not granted. It is for the Department of Family and Community Services to determine whether the applicant is appropriately authorised to care for his grandson. His grandson is only four years of age. I note he is not the first grandchild that has been in placed by the Department into the care of the applicant and his partner. 41Accordingly, I make the following orders: