BGW v NSW Office of the Children's Guardian

The Evidence 11The Tribunal received the following documentary evidence in support of the application and on behalf of the respondent; (1)Applicant's written submissions dated 14 September 2014 by the applicant's counsel: Exhibit A1; (2)Affidavit of the applicant filed with Tribunal on 28 August 2014: Exhibit A2; (3)Report by Dr Emma Collins, psychologist, dated 21 August 2014 and filed 28 August 2014: Exhibit A3; (4)Written submissions of the respondent dated 5 September 2014 by counsel: Exhibit R1; (5)Bundle of documents filed for the respondent on 31 July 2014: Exhibit R2; (6)Response from the Department of Family and Community Services pursuant to section 31 of the Act: Exhibit R3. 12The Tribunal also heard oral evidence and cross-examination from both the applicant, and Dr Collins. 13The Tribunal was further assisted by oral submissions on behalf of both parties, in addition to the documentary submissions already filed. 14A statement contained in these reasons of factual matters is a finding of fact based on the evidence referred to in these reasons.

The Relevant Legal Principles 15The Act came into force on 15 June 2013. 16The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a working with children check clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act. 17The paramount principle to be applied in decisions under the Act is contained in section 4 which provides: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 18"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years." There is no issue that the victim of the offence with which the applicant was charged and subsequently sentenced, was a child as defined in the Act at the time of the offence. 19The Children's Guardian must not grant a working with children check clearance if the person applying for that clearance is a person belonging to the group of 'disqualified persons': section 18 (1) (a) of the Act. 20The applicant is a disqualified person because his offence is listed at clause 1 (1) (h) of Schedule 2 of the Act. A person is not permitted to engage in "child-related work" unless they hold a clearance, and it is an offence to engage in that work without a clearance: section 8 of the Act. The definition of "child-related work" is contained in section 6 of the Act and Part 2 of the Child Protection (Working with Children) Regulation 2013. The work which the applicant wishes to perform requires a clearance because it is "child-related work". 21There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act 1998 which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units." 22There is no doubt that the offence which renders the applicant a disqualified person is categorised by any relevant definition as child abuse. More specifically it is beyond dispute that it is sexual abuse of a child.

Onus of proof 23The relevant onus of proof is placed upon the applicant because it is presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children by reason of section 28 (7) of the Act. The standard of proof applied by the Tribunal is the civil standard, that is, the balance of probabilities. 24However, the Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.

Required Considerations 25The Tribunal is required when making a determination under section 28 of the Act to address those matters which are referred to in section 30 (1) of the Act. Those matters are: "30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal." 26It must be specifically stated that by reason of section 28 (8) of the Act, an enabling order may not be made subject to conditions. 27The applicant is required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act. 28Further information is obtained by the Children's Guardian pursuant to section 31 of the Act from various agencies. That material has formed part of the exhibits in this matter.

The Issues 29The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act that there is sufficient evidence to rebut presumption that he poses a risk the safety of children: section 28 (7) of the Act.

Other relevant provisions 30The Tribunal may determine its own procedure in relation to any matter for which the CAT Act or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38 CAT Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, 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 [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436. 31The restrictions imposed by section 91 and 92 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence for which the applicant has been sentenced: section 38 of the CAT Act. 32The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the CAT Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17 of the CAT Act. 33The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

Consideration of the Evidence 34The evidence received by the Tribunal is required to be considered under each of the subheadings of section 30 (1) of the Act. That evidence is now set out under each of the subheadings of section 30(1)(a) to (k).

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 35The applicant was married when he was 21 years of age. That marriage continued until beginning of the year 2000. The applicant and his wife had 3 children born 1982(sic) (more likely 1992), 1994 and 2000: Exhibit A2 [9], [10], [17]. The youngest child was born after the separation of the applicant and his wife. The applicant states that he has shared custody of the 2 younger children. The applicant states in his evidence that his eldest son, who is also the eldest child, resides with him from time to time: ibid. [30]. The applicant annexed a letter from his former wife to his affidavit indicating she met him in about 1980, and she says that the applicant has shown regret and sadness over the offence: ibid. Annexure G. The applicant's former wife states that she trusts him implicitly with their children. 36When the applicant first met the victim of the offence it was January 1989. At that time the applicant was approximately 23 years of age. The applicant had sexual intercourse with the victim at that time and he gave evidence that he initially thought she was over the age of consent. The applicant gave evidence that when he became aware that the victim was 13 years old he continued to have sexual intercourse, on occasion daily, with her over a period of about 4 months. 37The applicant now described his offending behaviour to Dr Collins as "terrible" and commenting on the youth of the victim. Dr Collins observed, at Exhibit A3 [24], that the relationship continued with the victim at the time and this 'suggests' that his viewpoint has changed since the time of the offence. 38In his affidavit in the proceedings before the Tribunal the applicant states, at Exhibit A2 [34], "I deeply regret the circumstance that lead to the conviction." 39Dr Collins referred Exhibit A3 at [31] to a record by Richard Fisher, Clinical Psychologist, dated 22 March 1990. The applicant was described by Mr Fisher as anxious, immature, emotionally dependent and lacking in self-esteem. Mr Fisher is reported to have recorded that the applicant described the relationship with the victim as characterised by mutual affection and Mr Fisher believed that it also served the purpose of making the applicant feel important and useful. 40The applicant knew the victim and her family from the local area. The friendship developed due to arguments between the victim and her mother. The applicant provided some support to the victim because her mother apparently suffered from alcohol dependency. The applicant's description of the offences stressed that it is his opinion that the victim and himself had a 'relationship', i.e. more meaningful than a sexually abusive relationship. The applicant apparently described to Dr Collins unhappiness in his marriage, lack of emotional connection, and dissatisfaction (on his part) with the emotional aspects of his marriage. Notwithstanding that dissatisfaction, the applicant and his wife (and children) remained in the marriage relationship for another 10 years until the year 2000. 41The sexual relationship between the applicant and victim was discovered by the victim's mother and apparently reported to the police by her. It was alleged by the victim that the applicant's wife observed sexual activity between herself and the applicant but this has been consistently denied by the applicant. 42The applicant confirmed to Dr Collins the validity of the assessment made at the time of his supervision by the Probation and Parole Service, following his conviction, that he was emotionally insecure and anxious. The applicant participated in an assessment with the Commonwealth Rehabilitation Service which resulted in a report dated 19 June 1990. In that report it was considered that the applicant was suffering from somatisation disorder. It was also indicated in the reporter's opinion which was communicated to the Probation and Parole Service, that the applicant may have had a personality dysfunction. A further report from a medical professional at the hospital for the local area identified that the applicant was preoccupied with his body and intervention to improve his self-esteem and confidence would be beneficial: see Report of Dr Collins Exhibit A3, at [28], [29], [30]. 43The offences reflect a serious abuse of the relationship which the applicant had developed with the victim and she was entitled to expect that she would receive support from him rather than the applicant pursuing the sexual relationship to satisfy his emotional insecurity and seek solace because of his dissatisfaction with his marriage.

The period of time since those offences or matters occurred and the conduct of the person since they occurred 44The offence occurred in 1989 over a period of about 4 months. This was 25 years ago. The applicant has not repeated his behaviour according to the evidence before the Tribunal. 45The applicant submits that this factor is the determinative consideration in this matter. The provisions of section 30 (1) of the Act do not specify any particular consideration to be determinative of the matters to be considered by the Tribunal. 46Indeed, the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill for the Act be read a second time in that House, may be considered to confirm the meaning of the provision is the ordinary meaning conveyed by the text of the provision: section 34 (2) (f) of the Interpretation Act 1987. The Minister for Citizenship and Communities, and Minister for Aboriginal Affairs, Mr Dominello, on 13 June 2012 said: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of a pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviours over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk." 47The report of Dr Collins contains a significant amount of history both prior to the offences, and after that period of time. 48It is relevant to consider the matters identified in the second reading speech and the type of conduct of the applicant as identified in that speech. It is clear that the behaviour was beyond community norms, the offending behaviour was part of a pattern of escalating events, but in the past, and if it was repeated would cause significant harm to the victim's development. Despite the expressions of remorse by the applicant it is relevant that Mr Fisher identified that the applicant regarded his relationship with the victim as initially a loving one and this somehow made it 'right': Exhibit R2 page 93. Additionally, it was identified in the same part of Exhibit R2 that the applicant needs help to view the relationship in a more appropriate manner. It was clear during his evidence that the applicant does not appear to have moved on from this justification of the relationship and he continues to view the relationship in a similar manner. The relationship was an abusive one, a fact which has not been clearly acknowledged as such by the applicant. 49An incident occurred on 2 November 2002 at a hotel where the applicant was having a social drink. The applicant was talking to the girlfriend of another patron. The applicant alleged the other patron wrapped his right arm around the applicant's neck, pushed his face against the applicant's face and forced the applicant into a hard surface. As a result the applicant suffered a severe laceration to the right side of his forehead requiring treatment at hospital where he received 10 stitches to the wound. The other patron was interviewed by the police who denied the allegations made by the applicant. It was alleged that the applicant swore at the other patron and started punching him. A struggle ensued with both men falling to the ground. It was alleged that as a result the applicant struck his forehead on a fireplace. It was also alleged that the applicant was extremely intoxicated. The girlfriend of the patron and the applicant's girlfriend both corroborated the version given by the patron. The applicant's version was not accepted by the police and there were no witnesses to corroborate the applicant's version. This material is recorded in Exhibit R2 pages 4, 5. 50This event is significant in assessing the credibility of the applicant. More importantly, this event has an impact upon the risk assessment performed by Dr Collins. In her oral evidence Dr Collins stated that if it was possible to find that the applicant was the perpetrator in that event which occurred on 2 November 2002, the risk of re-offence based on the same assessment of risk Dr Collins performed using the accepted tools, is increased to 'moderate'. 51For the reasons recorded by the Police it is more likely than not that the applicant was the perpetrator in this incident. The applicant was, on the balance of probabilities, not being truthful about this incident. The applicant's overall credibility may adversely affect the integrity of his self-reporting of his current functioning.

The age of the person at the time the offences or matters occurred 52The applicant was aged 23 at the time of the offences.

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 53The victim was aged 13 at the time of the offences. The victim was vulnerable and a friendship developed between the applicant and the victim which appears from the material in Exhibit R2, page 85, to have been initiated by the applicant. 54The victim stated that initially she did not wish to have a sexual relationship with the applicant partly because he did not have with him any condom or a "Frenchie", to use the victim's words. The victim's description of the initial sexual encounter of full intercourse does not reflect well upon the applicant. The applicant's statement to the police contained in Exhibit R2, page 81, corroborates relevant aspects of the victim's description of that encounter. The victim also stated to the police that she was scared of getting pregnant but never said "no" to the applicant. 55The applicant pursued a sexual relationship with a vulnerable girl to satisfy his own psychological and emotional deficits and his sexual needs.

The difference in age between the victim and the person and the relationship (if any) between the victim and person 56The difference in age was 10 years.

Whether the person knew, or could reasonably have known, that the victim was a child 57The applicant knew that the victim was immature and when he found out she was only 13 years old, he continued the relationship and put it (her age) out of his mind: Exhibit R2 page 92.

The person's present age 58The applicant is currently aged 45 years.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 59The applicant also has a conviction for high range PCA (drink driving with a proscribed content of alcohol in his blood) on 8 November 2004 for which he was fined $600, with court costs of $63 and a 12 months disqualification period. 60The applicant is recorded in the Police record and COPS events to have been arguing with his girlfriend of the time and went to sit in his car, while intoxicated by alcohol, which resulted in the high range PCA charge. 61The applicant stated that his girlfriend at the time also refused to corroborate his account of the assault at the hotel in 2002, referred to earlier in these reasons.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 62The expert assessment by Dr Collins found that the applicant has a 'moderate-low' risk of re-offence. In oral evidence Dr Collins considered that if the applicant was considered a perpetrator of violence that risk could increase to a 'moderate' risk of re-offence. 63Dr Collins listed the following issues as protective with regards to the applicant's recidivism risk: Exhibit A3 at [43]: (1)the applicant's limited criminal history; (2)the applicant's reasonably consistent employment history; (3)the absence of recent substance abuse issues; (4)no evidence of overt sexual deviance; (5)the applicant does not reveal any markers of sexual violence, by way of coercion, escalation or diversity in his offending; (6)the applicant reports a prosocial support network; (7)the applicant has successfully completed supervision (with Probation and Parole in 1993); (8)there is no evidence of psychopathy. 64The following factors were assessed by Dr Collins, Exhibit A3 at [44] to increase the applicant's risk of re-offence: (1)the applicant committed the offence knowing victim's age and he was married at the time; (2)there is some minimisation of the offending, by way of his account that it was a mutually affectionate relationship (despite the victim's age, vulnerable background and inability to give consent). Such behaviour could reflect emotional identification with children at the time of the offence; (3)the applicant has a history of intimacy difficulties, marked by emotional insecurity and neediness that were factors which precipitated the index offence; (4)the applicant has a history of difficult and/or discordant relationships; (5)the applicant experienced a difficult upbringing, which caused early emotional problems, maternal dependence and anxiety; (6)the applicant has long standing history of anxiety problems. 65Dr Collins also states at [45]: "There is no immediate risk scenario that he is likely to engage in, particularly given there has been no recorded sexual reoffending for over two decades. The most feasible assessed risk triggers are [the applicant's] intimate relationships, such as an engagement in a dysfunctional relationship; however, this does not necessarily translate into any specific risk towards children." 66The evidence establishes that there is currently a moderate risk of re-offence based upon Dr Collins' expert assessment. The protective factors are not matters which can be tested to any degree and are to some extent limited by the reliance upon the credibility of the applicant in his self-report. 67Dr Collins draws attention to the caution which should be exercised in respect of the practice of risk assessment. Relevantly, Dr Collins states in Exhibit A3 at [39]: "Whilst risk assessment can be beneficial in providing important information about risk management, the practice in and of itself has limitations. Firstly, the base rate of sexual offender recidivism is low, which hence renders the prediction of such an uncommon behaviour as difficult. Secondly, risk assessment actuarial tools are normed upon groups of individuals and hence it is always unclear how any one individual will perform relative to the group that was studied. Furthermore, risk assessments are time-limited and only as good as the information on which they are based. They can change as new information becomes available, and all risk assessments have an appreciable level of error built into them. Risk assessments help to remove less clinical factors such as "gut feeling" and prejudice that can influence judgment. Although research typically highlights the superiority of structured risk assessment over unstructured clinical judgment as aforementioned, the evidence supporting such assessments is moderately valid only. Hence, decisions about risk are best made with multiple sources of data available, in which a formal risk assessment is only one such source of data (for a more detailed discussion see Mullen & Ogloff, 2009)." (References omitted) 68It has generally been accepted that the risk should not merely be any level of risk but must be "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). A moderate-low level of risk of re-offence as assessed using the tools employed by Dr Collins and taking into account the limitations of such an assessment identified by her, is capable of indicating a real and appreciable risk. 69The risk must also be linked to "the safety of children": section 28 (7) of the Act; Commission for Children and Young People v V (supra) at [42]. 70On the basis of the evidence before the Tribunal, it is assessed that the level of risk and likelihood of re-offence may now be considered to be at least at the moderate level of risk. 71It is assessed by the Tribunal that all the evidence therefore permits a finding that there is a real and appreciable risk to the safety of children posed by the applicant. 72The factors which are identified by Dr Collins to increase the risk of re-offence are matters which the applicant does not appear to have addressed to a level which would provide reasonable grounds to say that they no longer pose a concern. Other sources of evidence in addition to the risk assessment conducted by Dr Collins inform the Tribunal of the likelihood of repetition of the offences or conduct which is abusive of children. Some of the matters which increase the risk assume greater importance than the factors which may mitigate the risk when viewed in the light of the other evidence referred to previously and under the other factors listed in section 30(1) of the Act. 73The impact on children of any repetition of the applicant's offending behaviour is clearly deleterious to the psychological, emotional and physical health of any child victim.

Any information given by the applicant in, or in relation to, the application 74The applicant has provided an affidavit which sets out some of the history of his employment and references. 75In addition, the report of Dr Collins provides expert assessment of risk. 76The applicant stated to Dr Collins that he ended the marriage to his wife due to the fact that his wife was not meeting his emotional needs and he described her as emotionally detached and quiet, whereas he said he was outgoing in comparison: Exhibit A3 at [17]. 77The same emotional issues were said to have occurred at the time of the offence: Exhibit A3 at [23]. There is no clear picture of the applicant's current fulfilment of his emotional needs. Indeed he is currently emotionally still insecure and anxious: Exhibit A3 at [28], [29], [32], and [37]. There appears to have been little progress made by the applicant in finding a fulfilling emotional relationship. This has significance in terms of the triggers identified by Dr Collins: ibid. [45].

Any other matters that the Children's Guardian considers necessary 78There were no other matters that the Children's Guardian considered necessary.

Conclusion and determination 79It is accepted that the applicant has expressed statements of remorse concerning his abusive relationship with a 13-year-old girl. This is not a factor which alone mitigates risk as was recognised by the Minister in his second reading speech. Additionally, the evidence of the applicant does not identify in sufficient or persuasive detail the ways in which the applicant has addressed the risk factors identified. 80On the basis of all the evidence before the Tribunal, and having regard to the matters referred to in section 30(1) of the Act, it is assessed that the applicant has failed to discharge the onus to prove that he is not a risk to the safety of children. 81The order of the Tribunal will therefore be: (1)The application filed 24 April 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2014