BKE v Children's Guardian

Matters in issue

1. The parties agreed that in re-determining the applicant's application, the main issue was whether, on the basis of all the material before the Tribunal and the relevant provisions of the WWC Act (e.g. the factors contained in subs 30(1) of the WWC Act), the applicant has discharged his onus of rebutting the presumption contained in subs 28(7) of the Act that he poses a risk to the safety of children. Ms Andelman, counsel for the applicant submitted the applicant had discharged his onus, whereas Ms Lowson, counsel for the respondent contended otherwise.
2. In this regard, Ms Andelman submitted that the earlier findings of the Tribunal that the disqualifying offences were most serious should be accepted. She also submitted that the earlier finding of the Tribunal as to the likelihood of the applicant reoffending as he did in 1968 and 1970 should be accepted; namely the likelihood was low.
3. Ms Andleman submitted that what remained in issue were the circumstances surrounding the charges that were laid and dismissed in 2000 and the applicant's insight into the 1968 and 1970 offences. Ms Andleman contended the evidence shows that the 2000 incident was a "mistake." She also contended the applicant's insight into his earlier offending conduct was established through the applicant having made full admissions and pleading guilty to both offences and also having ceased to engage in "sexual relations" with the victim of the carnal knowledge offence once he became aware she was under 16 years of age.
4. Ms Lowson noted that the decision of His Honour Justice Beech-Jones was limited. In regard to the 2000 incident, Ms Lowson submitted it was open to the Tribunal to conclude, on the balance of probabilities, the applicant did intend to indecently assault his grandson. In the alternative, Ms Lowson contended there was sufficient contemporaneous material for the Tribunal in not knowing whether or not the indecent assault occurred, in which case the applicant could not discharge the onus of showing that he poses no risk to children. Ms Lowson went on to contend that in light of the contemporaneous evidence the Tribunal could not, on the balance of probabilities accept the applicant's explanation of it being a "mistake".
5. Before I deal with the evidence it is convenient to reiterate the relevant provisions of the WWC Act and the applicable legal principles.

The Child Protection (Working with Children) Act 2012

1. The relevant provisions of the WWC Act are set out at [15] to [27] of the earlier decision. In summary the relevant provisions are ss 3, 4, 6, 28 and 30 of that Act.
2. Section 3 sets out the objects of the WWC Act. These are: "(a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
3. Child related work is broadly defined in s 6 of the WWC Act and where a clearance is granted the person is cleared to work in any of the prescribed work that involves direct contact by a worker with children, or the prescribed child related roles in that section and the Child Protection (Working with Children) Regulation 2013. That is, a clearance, once granted, is not limited to the child related work for which an applicant has sought a clearance it is a clearance for any child related work and it remains in force for five years unless cancelled prior thereto: see WWC Act s22.
4. As I have noted, subs 18(1) of the WWC Act provides that the respondent must refuse an applicant for a clearance of a disqualified person.
5. Subsection 28 of the WWC Act provides that a disqualified person whose application for as clearance has been refused by the respondent can apply to the tribunal for an enabling order. Subsection 28(1) is in the following terms: 28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.
6. Subsection 28(8) of the WWC Act provides that an enabling order may not be made subject to conditions.
7. As I have noted, because the applicant has been convicted of a disqualifying offence, subs 28(7) of the WWC Act provides that the applicant is presumed to pose a risk to the safety of children unless he proves the contrary. That is, the onus is on the applicant to rebut the presumption contained in that subsection.
8. Subsection 30(1) of the WWC Act sets out the matters the Tribunal is to have regard to in determining this application. That subsection is in the following terms: "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."
9. In this case, of relevance to the subs 30(1) matters include the applicant's convictions subsequent to the convictions of the disqualifying offences and the circumstances surrounding the charge, in 2000, of indecent assault of his grandson.
10. Finally, section 4 of the WWC Act provides the paramount consideration in the operation of that Act is "the safety, welfare and well-being of children and, in particular, protecting them from child abuse."

Relevant legal principles

1. The jurisdiction of the Tribunal in these proceedings is protective and not punitive in nature; see Commission 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 eliminate possible risks to the safety of children.
2. The meaning of the word "risk" was considered, by his Honour Young CJ in Eq, 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 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.""
3. The Tribunal has accepted that the word "risk" as it appears in the WWC Act should be given the same meaning, namely "a real and appreciable risk." As I have noted, by reason of subs 28(7) of the WWC Act, the applicant is presumed to pose a real and appreciable risk to the safety of children by reason of his 1968 and 1970 convictions and the onus is on him to prove the contrary.
4. In BKE [2015] NSWSC, at [27], His Honour Justice Beech-Jones noted the structure of the WWC Act is such that the assessment of risk is "uncalibrated" in that there is no relevant assessment of risk the applicant may pose to his grandson, or any other child that may come into contact with him at his home. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."
5. His Honour also noted, at [29], that while the Tribunal is not bound by the rules of evidence (see Civil and Administrative Tribunal Act 2013, subs 38(2)), if "considering making a positive finding that an applicant sexually abused a child" in circumstances where no conviction was recorded, the Tribunal would be "well advised to have regard to them." That is, a finding that the applicant engaged in conduct of this kind should be established on the balance of probability on the basis of rationally probative evidence: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, per Dean J at 156.
6. His Honour went on to say that, in proceedings such as these, where allegations of the kind giving rise to the charges laid against the applicant in 2000 are disputed, "significant guidance as to the approach to be adopted in such cases can be derived from" the decision of the High Court in M v M [1988] HCA 68, 166 CLR 69 (M v M).
7. M v M was an appeal from the Full Court of the Family Court concerning a custody and access dispute between a husband and wife in regard to their daughter, where the wife alleged the husband had sexually abused the daughter. The appellant (the husband) argued that the paramount issue for determination was the allegation of sexual abuse and the second issue was whether there was a risk, if custody or access be granted, of sexual abuse occurring. The High Court (per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) rejected this argument and said, at p76, in proceedings under Pt VII of the Family Law Act 1975 (Cth): "… [the ultimate] and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue."
8. At p76 and 77, the High Court went on to say the following in regard to making findings on an allegation of sexual abuse: "In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. … In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. … "
9. Proceedings under the WWC Act differ to those under the Family Law Act 1975 (Cth). However, the issue of risk of abuse to children is common to both. As explained by His Honour Justice Beech-Jones, in proceedings under the WWC Act, the issue of risk is to be considered in the context of children generally in any type of child related work as defined in s 6 of the Act and not in the context of a specific child or children in a family situation.
10. As I have noted, the paramount consideration in the operation of the WWC Act is the "safety, welfare and wellbeing of children and, in particular, protecting them from child abuse" (see WWC Act, s4). The applicant, being a disqualified person is presumed to pose a risk to the safety of children, unless he proves the contrary (see WWC Act, subs 28(7)). That is, the ultimate issue to be decided in this application is whether the applicant has discharged his onus in rebutting the presumption that he does pose a risk to the safety of children. In deciding this issue I must have regard to the factors set out in subs 30(1) of the WWC Act so far as they are relevant to the material before the Tribunal. That material includes the allegation that the applicant indecently assaulted his grandson on 1 January 2000.

The appellant's disqualifying offences

1. The applicant was convicted of the offence of buggery, on 27 May 1968. He pleaded guilty to the offence and the Court deferred sentencing the applicant on the condition that he entered into a recognisance to be of good behaviour for two years. This was the first offence the applicant had been convicted of. He was 18 years of age at the time. The victim of the offence was the five year old grandson of the applicant's aunt and the offence occurred at a time the applicant was alone with the victim. He gave the victim a shilling after having sexually assaulted him. When interviewed by police, the applicant admitted to the offending conduct and when asked if there was any reason why he did this, he said "no".
2. The applicant was convicted of the offence of canal knowledge, on 19 May 1970. He pleaded guilty to the offence and the Court again deferred sentencing the applicant on the condition he entered into a recognisance to be of good behaviour for two years. on a plea of guilty. At the time he was a single man, 20 years of age and a labourer by occupation.
3. In a police statement, dated 16 April 1970, it is recorded that on 14 April 1970, the police attended the applicant's home and said they wanted to speak to him about the victim. He was asked whether he knew the victim to which he responded he did know her. The police officer told him that the victim had informed police that she was pregnant and that the applicant was responsible for her condition. The statement notes the applicant went voluntarily with police to the police station and participated in a formal record of interview. In the transcript of the formal interview the applicant is recorded as having said he had known the victim for about six months and they had engaged in sexual intercourse a number of times since they met. During the interview the applicant was asked how old the victim was to which he responded that she was "going on to 16". The applicant is recorded as having said the victim told him how old she was after the first time they had engaged in sexual intercourse. The applicant was also asked whether he was aware that he should not engage in sexual intercourse with a girl under the age of 16 to which he responded "yes". The applicant was asked whether he intended to get married to which he responded "yes".
4. The applicant's responses, as recorded in the transcript of his interview, are consistent with the contents of a written statement made by the victim on the same day. The victim was born in August 1954 which made her almost 15½ years of age at the time the applicant began having a sexual relationship with her.

The appellant's criminal record

1. Between late 1982 and early 1993, the applicant was convicted of a number of offences, which included offences of violence.
2. In November 1982, the applicant was convicted of an offence of assault occasioning actual bodily harm. The Court again deferred sentencing the applicant on the condition he entered into a recognisance to be of good behaviour for 12 months. In March 1984, the applicant was convicted of a number of offences (i.e. causing serious alarm (fighting in the street and hotel) assaulting police and resisting arrest). The applicant was fined $150 for two offences and he entered into a recognisance to be of good behaviour for 12 months in regard to the serious alarm offence. In February of that year the applicant was also convicted of an offence of driving with a high range prescribed concentration of alcohol.
3. In May 1985, a first instance warrant was issued by the Court in regard to domestic violence. It would appear the applicant was subject to a Domestic Violence Order, the conditions of which included not to approach his wife at her address while he was under the influence of intoxicating liquor. Two months later, in July 1985, the applicant was convicted of assaulting his wife. Again the Court deferred sentence on the condition the applicant entered into a recognisance to be of good behaviour for 12 months.
4. In October 1988, the applicant was charged with an offence of assaulting his wife. The charge was subsequently dismissed.
5. In March 1990, the applicant was convicted of an offence of malicious damage. Again his sentence was deferred on the condition he entered into a recognisance to be of good behaviour for twelve months.
6. In May 1990, the applicant was convicted and fined on two charges of resisting arrest and a charge of offensive language. In August 1992, the applicant was convicted and fined on another offensive language charge. And in January 1993, the applicant was convicted of an offence arising from a breach of an Apprehended Domestic Violence Order. Again the protected person was the applicant's wife. The applicant was fined $200.00 in regard to this breach.
7. In the course of the respondent's enquires, very little, if any, information was produced in regard to the circumstances surrounding the 1982 to 1993 charges and convictions

The 2000 charge of incident assault

1. On 1 January 2000, the applicant was charged with an offence of indecent assault where the victim was under the age of 10 years contrary to s 61M(2) of the Crimes Act 1900. The victim was the applicant's eldest grandson, who was 7 years of age at that time.
2. Included in the respondent's documents were copies of records held by the Local Court in regard to the proceedings concerning this charge, which was heard on 3 July 2000 (see Ex R1, tab2). I note the applicant was legally represented at this hearing.
3. The records of the Local Court included a copy of the Court Cover Sheet, a transcript of Triple O calls that were made early in the morning of 1 January 2000, and witness statements.
4. Early that morning (5.50 am) the applicant called Triple O. A transcript of that call records the following conversation between the Triple O operator (identified as VKG) and the applicant (caller 1) and his wife (caller 2) as follows: "'VKG: Police emergency. Caller 1: Yeh, could you send the police over to [ADDRESS] please. VKG .... .... VKG : And what's the problem there? Caller 1: Uh, just send'em over here please. VKG: Yeh tell me what the problem is? Caller 1: Just send'em over here. VKG: Yeh tell me what the problem is? Caller 1: If you don't send'em over here I'll just hang up. VKG : Alright well ..... Caller 1: [applicant's name]. Caller 2: Yah wanna come because it's child molestin yah wanna send someone now or I'll go over you. Caller 1: Can ya send him over here please. VKG : What's the problem there? Caller 1: Child molesting, the wife said. VKG : And whose involved in that? Caller 1: Her husband. VKG: So that's you. Caller 1: Yeh that's me. (A lot of background noise with a female voice in particular) Caller 1: Yes I am. VKG : Who else does this involve? Caller 1: Me wife. VKG : And who else? Caller 1: Me grandson. VKG : Alright we'll get the police there. ..."
5. Ten minutes later the son of the applicant's wife called the Triple 0 line. The transcript of that call indicates that there was a lot of background noise and a male voice was heard to say; "I'll break your ...."
6. When asked by the operator who was "threatening to break bones" - the son of the applicant's wife said that it was the applicant.
7. The applicant made a further call to Triple 0 at 6:29am.
8. In a written statement, dated 1 January 2000, Detective Senior Constable Stephen Pearson said he attended the home of the applicant and his wife at about 6:30am that morning. He said he spoke with a number of people who were arguing on the front lawn of the applicant's home. This included the applicant and the son of the applicant's wife. The applicant is stated to have been armed with a sharpening steel and the son of the applicant's wife was armed with a kitchen knife and they were yelling at each other.
9. In his statement Detective Senior Constable Pearson said he spoke to the applicant and asked him to tell him what was going on. Detective Constable Pearson recorded the applicant having said the following: "Look. I gotta tell ya. I was lying in bed with my wife. We haven't had sex for over three months and I thought tonight I might get lucky. So I reach over like this [indicating a motion with his left hand] and I touched my grandson on his thing, down here, you know [indicating his pubic region]. I want to make a statement about all this alright?"
10. In her statement, dated 3 January 2000, Senior Constable Erhardt, stated that at 7.50am on 1 January 2000, she attended the local police station and spoke the applicant's wife and their eldest grandson. She said she escorted them to the local Child Protection Investigation Team Office where she made a telephone call for a staff member of the then Department of Family and Community Services (DoCS) to attend the office. Senior Constable Erhardt said that an officer of DoCS attended at about 11.05 am that morning and they commenced a "Joint Investigation Response" interview (JIR interview) with the applicant's eldest grandson. She said that during this interview, the applicant's grandson made markings with red pen on a body chart and signed and dated the markings. A copy of a body chart was included in the documents provided by the Local Court (see Ex R1, p 76). However, the document did not contain any markings.
11. In addition to this document there were two three sketches that were said to have been drawn by the applicant's grandson. The sketches depict the applicant's grandson lying in between the applicant and his wife. They also depict the youngest grandson being in a bed near the applicant's wife.
12. Included in the documents provided to the respondent from the Department of Family and Community Services, were the records of DoCS in relation to the incident (see Ex R4). In the record of the interview with the applicant's older grandson (see Ex R4, p23) it is stated that during the JIR interview, the child "disclosed that he had been touched on his "business" which he said was his willie, meaning his penis and his bum by his grandfather when he was in his grandparents bed with his brother when it was dark last night." The child said he was wearing trousers and underpants and that he was touched inside his trousers but outside his underpants. The child also said this had not happened to him before. The record went on to state that following the interview, the applicant's wife was informed about what had been said by her grandson and that her husband would be served with an AVO and vacate the home.
13. In her statement, Senior Constable Erhardt also said she spoke to the applicant's wife that morning and obtained a statement from her.
14. In her statement the applicant's wife said that at about 8:00pm on 31 December 1999, she, the applicant and her family all went out to the local bowling club for a New Year's Eve celebration. She said she left her two grandsons (then aged 7 and 2 years) in the care of her son who was 27 years of age at that time. She said they all left the bowling club together when the band finished playing. She said she was not sure what time they left but she knew it was after midnight. She said that when they got home the applicant "was pretty charged up (drunk) and I was pretty tipsy." She said the youngest grandson was asleep in his cot in their bedroom and the older grandson was asleep in his bed. She said that in the early hours of that morning she was woken up by the applicant. She said her eldest grandchild was next to her in the bed when she first woke up however he jumped up and got into the younger grandson's cot. She said that some time during the night she had put the younger grandson into their bed. She said the applicant touched her on the shoulder and she woke up straightaway. She said he was crying. She said that the older grandson was in the younger grandson's cot by this time. She said she was concerned that something was wrong as the applicant was crying. She said "it had something to do with him [the applicant] doing sexual to [the older grandson]". The applicant's wife went on to say she had the following interchange with the applicant: "I said, "Is it to do with [name of older grandson]?" He said, "I didn't mean it, I thought it was you."''
15. At the end of the statement the applicant's wife said: "I have fears for the safety of my grandchildren, [names of grandchildren] and because of these fears I do not want my husband [name of the applicant], living in the same house as us anymore. Some of these fears are also based on what I have been told about [name of the applicant] past. I was told by [name of the applicant] aunty when I moved to [name of town] with [the applicant] that [name of applicant] had molested his cousin's son.'"
16. The son of the applicant's wife also made a statement for police. Her son, who said he suffers from schizophrenia, explained that on the morning in question, he overheard the applicant and his mother talking and there was something about the way they were talking that made him think there was something wrong. He said he spoke to the grandson about being touched and that he "was really wild and felt really sick about it." He said he went into the kitchen and saw his uncle punch the applicant in the face. He said he picked up a big butcher's knife from the kitchen draw and "stabbed" the applicant in the back. He also said he could not remember it all as he had been drinking and this affected his memory.
17. The log sheet of the master tape recording of the proceedings before the Court indicates that the only person called to give evidence was the applicant's wife. The log sheet goes on to indicate that following submissions made by the prosecution and the applicant's legal representative the Magistrate said something and finally made an order dismissing the charge made against the applicant. That is, it would appear that the application was dismissed after a short hearing. A transcript of the Magistrate's remarks was not before the Tribunal. Nor did the applicant or his wife give any evidence as to what was said.
18. The Court Charge Cover Sheet however, contains the following notation in respect of the offence of which the applicant was charged: "Issue = intent No dispute actus reus."
19. For the purpose of these proceedings, the applicant relies on an affidavit sworn by his eldest grandson, on 12 August 2014. In that affidavit, the applicant's grandson said that at some stage that night he remembered: "I woke up and got into Nan and Pop's bed and went back to sleep, which was normal for me.'" He went on to say "Pop touch me in the groin area." He said he got up and hopped into the cot with his brother. He said: "Nan was really irate and Pop was really upset. I remember that he kept apologising." He said he never thought the applicant intentionally tried to hurt him - he thought it was a mistake. He said he never felt unsafe around the applicant, but he did recollect that the applicant had moved out of the house for a while after the incident.
20. In his affidavit, filed and served for the purpose of the rehearing, the applicant said the following in regard to the 2000 incident: "24 I don't really remember now what happened on 1 January 2000. I can remember standing in the kitchen and [name of the son of the applicant's wife], our son who was staying with us at the time, threatening me. I think I must have then gone in and woken up [name of the applicant's wife], but I can't really remember. 25 I don't remember [name of grandson] being in the bed when I went to sleep. I don't remember it being usual for [name of grandson] to sleep in the bed with [name of applicant's wife] and me. I don't remember touching [name of grandson] in the groin area. 26 I don't remember going to court for the charge, but I do know that I was found not guilty. I also remember that I wasn't allowed to live in our family home with [name of wife and two grandson's] for two years. I don't know why, DoCS just told me I couldn't live there. 27 The family and I went to a counsellor during those two years, and after that I was allowed to go home again."
21. During his cross examination, the applicant reiterated that he did not remember anything about the incident. He said he did not remember waking his wife. However, he did remember crying after he was told by his wife's son about what happened. He said he rang the police because of what he had been told and he recalled being stabbed by his wife's son. He said his grandson slept in his own room and he did not remember whether he was in bed with him and his wife on the night in question. He said he did not remember touching his grandson and went on to deny having touched him at all. He said he remembered touching his wife and she told him to stop so he got out of bed. He agreed that the son of his wife had stabbed him because of the alleged touching of his grandson. He was not aware that his grandson had made a complaint to the police but was aware that the police had obtained an Apprehended Violence Order against him. He said he knew why he could not go to the home following the incident and he did not know that he could have had the AVO lifted.
22. In re-examination the applicant said he did not remember if he had touched his grandson. He said he was very sorry and he knows he would never do that to him. He also went on to say what was in the past was in the past.
23. The applicant's evidence was consistent with what he had said in evidence at the earlier hearing (see BKE [2015] NSWSC, at [89] and [90]).
24. In her affidavit, the applicant's wife, said the following in regard to the 2000 incident: "13. I remember making a statement to the police after the incident with [BKE] and [the grandson] on 1 January 2000. I have re-read my statement again recently. I didn't mean, and I do not now, agree to the contents of paragraph 13 which states that I feared for the safety of my grandchildren. The fears I held were around the threats that my son [name of applicant's son], and my brother [name], had made towards [BKE] after the allegation was made against [BKE]. 14. I have never held any fears for the safety of my grandsons with [BKE]. 15. When [the grandsons] were young I was the one who bathed and clothed them every day. I never saw any signs of injury on either of the boys. 16. If I had ever thought that [BKE] had or could do something to our grandsons I would never have let him get away with it. 17. I don't remember what happened when we went to Court. I don't remember being asked any questions. I clearly remember feeling at the time that I wasn't given an opportunity to explain things. I wasn't given a chance to speak in Court. The police and DoCS and other people did all the talking. I wasn't given the opportunity to say it was all just a mistake. I still feel that way now. 18. [BKE] wasn't allowed to live in our home for about 2 years. I don't remember why, DoCS just told me he wasn't allowed to live at home. The family had to go through counselling, and after that he was allowed home. 19. Other than the 2 years after the 2000 incident, DoCS has never said to me that they have any problem with [BKE] being around [the grandsons]. 20. We have always done whatever DoCS have required of us. We accepted that [BKE] couldn't live at home during those 2 years, even though I thought it was wrong. We followed the rules and the orders of DoCS to the letter. 21. I never had any doubts that [BKE] hadn't done anything wrong, and that's why I stuck by him. I still feel this way. 22. To this day, neither [the grandsons] have any problems with their Pop. I never thought that [the grandsons] were in fear of [BKE]. They only show him love and respect."
25. In cross examination the applicant's wife said she remembered her husband having woken her up on the morning in question. She said he did not cry immediately and that he told her that he "pressed up" against their grandson but he thought it was her. She said that her brother and her son had pounced on her husband because they overheard their conversation. She said that her husband did not tell her that he had "touched" their grandson. She said that their grandson "sometimes went into the bed occasionally". She said she had taught the boys not to let anyone touch them and she did not think her husband had done anything wrong because she questioned him about what had happened. She said that after her husband told her what happened and her brother and her son pounced on her husband they were under a lot of stress because there could have been a "murder". Because of a concern about a "possible murder", the applicant's wife said she took the matter to "law and order". She said she called out "child molesting" because she knew the police would come. She said that when the police did come they took her and her older grandson to the "blue house", where police questioned her grandson. She accepted that the "blue house" was the child protection house. She said she was not with her grandson when he was interviewed by police but she had told him before the interview that he was to tell the truth. The applicant's wife also said she remembered "blurting out", but did not recollect saying the words "something sexual". She again stressed that she wanted to prevent a murder and make sure her grandson was not touched. She said she was happy the police took action to make sure whether he was or was not touched. She said that all her grandson had told her was that "Pop did not touch him". She said she was not aware that her grandson had told police that the applicant had touched his penis. She said that she did not recollect saying that she was supportive of an AVO being taken out by police against her husband at the time the incident occurred. She did recollect her husband not being allowed into the house for two years and that DoCS put her and the boys and the applicant through counselling. She said she thought it was done to make sure the boys were not touched. In regard to the statement that she made to the police, she said that she signed the statement, but was under extreme stress and did not read it.
26. In my view the applicant and his wife gave truthful evidence to the best of their respective recollections and ability. The applicant's wife struck me as a caring wife and grandmother. She has obviously found these proceedings and the events of 2000 to be very stressful. I accept she may have been very concerned about the altercation between her husband and her son on the morning in question. However, in light of the contemporaneous record of events on the day in question I cannot accept that she was not concerned about what the applicant's alleged conduct. Nor do I accept that she was told by her grandson that her husband had not touched him.
27. In light of the contemporaneous records, I am also not persuaded that at the time the applicant's wife had not expressed having fears about the safety of her grandsons, or that her concerns were misunderstood. I am also not persuaded that she never doubted the applicant had not done anything wrong. This does not mean that I find she was untruthful. On the contrary, as I have noted, in my view she gave evidence to the best of her recollection. Her statement about not doubting the applicant is one she makes today. The contemporaneous records would suggest she was not so confident at the time the incident occurred. However, I note that by December 2001, she is recorded as being supportive of her grandsons having more contact with her husband, but agreed that contact was to remain supervised contact.
28. As I have noted in the earlier decision, the applicant was subject to an Apprehended Violence Order (AVO) for two years which prevented him from living at his home. During this time DoCS arranged counselling for the boys, the applicant's wife and the family as a whole. There is no evidence the applicant breached the AVO, or that he or his wife ever questioned the need for the AVO to be ongoing. This was not the first AVO the applicant was subject to and on this basis it is difficult to accept the applicant nor his wife were aware of the ability to seek to have the AVO removed.
29. While I accept the applicant gave truthful evidence to the best of his recollection and ability, I also found him to be rather aloof and removed from the matters in issue. Again, given the efflux ion of time I have given greater weight to the contemporaneous record of events.
30. Having regard to all the material before the Tribunal, in particular the contemporaneous records of the events on the day in question, I am satisfied, on the balance of probabilities that the applicant did touch his grandson on the day in question. He admitted to doing so when asked by Detective Senior Constable Pearson that morning and the applicant's grandson's evidence that day was that he had been touched by the applicant on his groin and bottom. However, I am unable to find that the applicant, in touching his grandson, intended to indecently assault him. At the same time, I am not able to conclude that the touching of his grandson was a "mistake", or that the applicant had no knowledge of his grandson being in the bed. Even if I am wrong, in my view the fact that the grandson was in the applicant's bed on the night in question is of concern as he and his wife had been drinking heavily.

S 30(1)(a) seriousness of the disqualifying offence

1. The disqualifying offences of which the applicant was convicted were both serious. The applicant does not suggest otherwise. In my view, the buggery offence was most serious because it involved sexually deviate behaviour of a very young pre-pubescent boy. It was the first offence committed by the applicant and the carnal knowledge offence occurred two years later.
2. I am not persuaded by the applicant's submissions that his plea of guilty was indicative of his insight into his offending conduct. Nor does it provide an explanation as to why the applicant did what he did. This is especially so in regard to the buggery offence.
3. Nor am I persuaded by the applicant's contention that he ceased sexual intercourse with the victim of the carnal knowledge offence once he became aware of her age. The contemporaneous records indicate otherwise. As noted above, in the transcript of his interview with police at that time it is recorded he said he knew the age of the victim after the first time they engaged in sexual intercourse. The victim, in her statement made a similar statement and there is no dispute they continued to have sexual intercourse after this time.
4. While these offences occurred many years ago, in my view, the applicant did not demonstrate in his evidence that he had any real insight into his offending conduct, or the impact the offending conduct had on the victim, especially the young boy.

S 30(1)(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred

1. The buggery offence occurred 37 years ago and the carnal knowledge offence occurred 34 years ago. Between 1982 and 1993 the applicant was convicted of numerous violent offences, including assaulting his wife and breaching an Apprehended Domestic Violence Order (ADVO). The protected person of the ADVO was the applicant's wife.
2. These offences were often perpetrated at a time the applicant had been drinking excessively. The applicant in his evidence acknowledged that he had a problem with alcohol. However, his evidence is that since 2000 he has stopped drinking alcohol altogether. It was the evidence of the applicant's wife that following the 1 January 2000 incident, she issued her husband with an ultimatum in regard to his alcohol consumption. It is the applicant's evidence that his deteriorating health since that time has meant that he no longer has any desire to drink alcohol.
3. The only other issue of concern is the alleged indecent assault of his grandson, on 1 January 2000. For the reasons set out above, I have found that the applicant did touch his grandson on his groin and bottom. However, I am not satisfied, on the material before the Tribunal establishes, on the balance of probabilities that the applicant intended to indecently assault his grandson as alleged. The circumstances surrounding this incident however remain a matter of concern in regard to assessing whether the applicant has discharged his onus. I have dealt with this below.

S 30(1)(c) the age of the person at the time the offences or matters occurred

1. The applicant was almost 18 years of age at the time he committed the buggery offence and 20 years of age when he committed the carnal knowledge offence. That is, he was a young man at that time.

S 30(1)(d) the age of victim of the disqualifying offence(s) and any matters relating to the vulnerability of the victim

S 30(1)(e) the difference in age between the victim and the applicant and the relationship (if any) between them

1. As I have noted the victim of the buggery offence was 5 years of age at the time of the offence. Hence there was a difference of around 12 years between the victim and the applicant. The victim was the applicant's cousin who was particularly vulnerable due to his age. The applicant was also in a position of trust as the adult member of the family who had been entrusted to look after the child. The applicant's offending conduct was a serious abuse of his position of trust, including through his attempt to "buy" the child's silence with money.
2. The victim of the carnal knowledge offence was 15½ years of age. The difference in age between the victim and the applicant was 4½ years. Other than her age there is no further evidence of her vulnerability.

S 30(1)(f) whether the person knew, or could reasonably have known, that the victim was a child

1. On the evidence it must have been apparent to the applicant that the victim of the buggery offence was a child as he was a family member. As I have noted, the applicant was also aware the victim of the carnal knowledge offence was under the age of 16 years.

S 30(1)(g) the persons present age

1. The applicant is 65 years of age.

S 30(1)(h) the seriousness of the applicant's total criminal record

1. As I have noted the applicant has been convicted of numerous offences. Other than the disqualifying offences they include convictions for indecent language, assault occasioning actual bodily harm, fighting, assault police, resist arrest, drink driving, domestic violence, offensive language and a breach of an AVO. There was a period of 12 years, from 1970 to 1982, where the applicant was not convicted of any offences. His offending conduct primarily occurred between 1982 and 1993. He has not been convicted of any further offences since that time (i.e. not in the last 22 years). While he has not been imprisoned for his offending conduct what is of concern is that his offending conduct is violent in nature.

S 30(1)(i) the likelihood of any repetition of the disqualifying offence and the impact on children of any such offence

1. In her submissions, Ms Lowson for the respondent, submitted that unless the Tribunal, contrary to the respondent's submissions, accepts the applicant's "innocent explanation" then the question mark over the 2000 conduct, and in similarity to the 1968 buggery offence, mean that the Tribunal cannot be satisfied that the applicant would not engage in similar conduct again.
2. In her submissions Ms Andelman submitted that the applicant is now an elderly man, with a very poor prognosis of health. She also submitted that he sought a clearance so he could return home and that he is not otherwise involved in any work involving children. She also submitted that the relevant evidence from Mr Tryer's psychological report is that the applicant poses a relatively low risk of offending.
3. As noted in the earlier decision, the applicant relied on a risk assessment report prepared by Mr Tryer, dated 18 August 2014 (see Ex A2). Mr Tryer is a psychologist and had been engaged by DoCS in 2000 to work with the family, including the boys, following the 2000 incident. The respondent also relied on earlier reports prepared by Dr Tryer during 2000 and 2001, and produced by the Department of Family and Community Services (Ex R3 and R5).
4. While I dealt with Dr Tryer's risk assessment report in the earlier decision, it is instructive to reiterate some of his findings. For example, Mr Tyrer found the applicant scored a 5 on the STATIC-99 Risk Assessment Instrument. In this regard he said: "Based upon the STATIC-99 score, this places [the applicant] in the Moderate-High risk category relative to other adult male sex offenders. Based on a review of other risk factors in this case I believe that this STATIC-99 score over represents [the applicant's] risk at this time. The other risk factors considered that support this conclusion are his age in general, chronic poor health, with a deteriorating prognosis, and the duration and positive influence of a cessation of alcohol use. There are no convictions recorded of any type since 1993. These factors might point towards a lower risk assessment."
5. Mr Tyrer identified the following, which in his opinion, were risk factors relevant to the applicant's reoffending: "The most serious factor, in my view is the historical abuse against a 5 year old member of the extended family who raised [the applicant]. The other two incidents also raise varying degrees of concern, although the first appears to have been non-exploitive between two parties of relatively similar age. The second incident culminated in a Court finding not guilty. There is a substantial period (1982-1983) in which a number of convictions, including non-sexual violence occurred. [The applicant] acknowledges that this was a period of heavy alcohol abuse and generally poor functioning. He attributes most of the legal trouble that he had during that period to the influence of alcohol."
6. In his conclusions and recommendations Mr Tyrer said: "….[psychometric] assessment places [the applicant] in the Moderate-High risk category for reoffending. The dilemma in making this assessment is that the facts and clinical judgment would suggest there are two distinctly different periods that must be examined in order to draw any useful conclusions. The period following the early convictions includes all of the factors that have contributed to the Moderate-High risk category. The last 14 years involved none of those factors. So are we to judge [the applicant's] risk based on his earlier history or the evidence of the last 14 years? It would be my contention that 14 years represents a period of sufficient length to make confident conclusions about future behaviour, and that the likelihood of risk of harm is relatively low, and further reduced by additional factors such as increasing age, declining health, reported minimal contact with any other children."
7. Mr Tyrer identified the following protective factors relevant to the applicant re-offending: 1. no alcohol consumption in the last 14 years, 2. no convictions of any type recorded in the period that his grandsons have been in his care, 3. the applicant appears to have been co-operative in every instance of police investigation and no other sexual offences have been identified, and 4. the applicant appears to have the respect and love of his grandsons, which was directly observed by him (Mr Tyrer) during his work with the family between 2000 and 2002.
8. I accept the likelihood of the applicant reoffending can be considered to be moderately low given the time that has lapsed since he committed the disqualifying offences, his subsequent offences and the events of 2000. This is especially so if the likelihood of reoffending is considered in the context of the specific purpose for which the applicant seeks a clearance. However, the issue must be considered in a broader context and in my view, while the likelihood of reoffending remains relatively low in the broader context, what is of concern is that he has had a past pattern of offending and his apparent lack of any real insight into his offending conduct (especially the offence of buggery) and his conduct in January 2000 and what effect this has had on the respective victims. I accept he no longer consumes alcohol to the extent he did up to 2000. It is his evidence that he does not drink at all. However, this alone does not demonstrate insight into his offending conduct or the events of 2000. There is also no evidence to suggest the 1968 offence was committed while the applicant was intoxicated.

S 30(1)(j) any further information given by the applicant

1. Ms Andelman, pointed to the evidence of the applicant as to his concerns for the children and the impact of his removal from his home has had on his grandson. She also pointed to the evidence of the applicant's wife and the great deal of stress the applicant's inability to live at their home has caused her and the applicant. She also noted the considerable anxiety of the applicant's wife in regard to any emergency arising from the applicant's heart condition while he is away from his home.
2. Ms Andelman reiterated the family's perceptions of what was a misunderstanding by DoCS and police when responding to the 1 January 2000 Triple 0 call, namely a misunderstanding that the applicant's wife considered her husband to be a risk to the safety of her grandsons.
3. While I fully understand the concerns of the applicant and his wife as to the effect these proceedings have had on the family, these are not matters relevant to these proceedings other than to indicate the applicant does have a supportive family who care about him and want him to be able to return to his home.
4. In regard to DoCS and police misunderstanding the applicant's wife, in my view the contemporaneous records do not support this assertion.

S 30(1)(k) any other matters that the respondent considers necessary

1. The respondent's concerns primarily relate to the events surrounding the 1 January 2000 incident and the seriousness of the applicant's offending conduct, especially his 1968 conviction for buggery.

Conclusions and Orders

1. As I have noted, the jurisdiction of the Tribunal is protective and not punitive in nature. However, I recognise that if the order sought is not made it will have an adverse effect on the applicant in that he will not be able to return to his home while his wife remains an authorised carer of a child in her day-to-day care.
2. I reiterate, the main issue for determination is whether the applicant has rebutted the presumption that he poses a real and appreciable risk to the safety of children. As I have noted the question is not whether the applicant, in the role for which he seeks a clearance has rebutted the presumption. Had this been the test, I would have found that the applicant had rebutted the presumption as his youngest grandson is now 17 years of age and I do not believe he poses a real or appreciable risk to his safety.
3. However, as I have explained I must be satisfied, on the balance of probabilities that the applicant has discharged his onus and rebutted the presumption that he poses a real and appreciable risk to the safety of children more generally. Having regard to s4 of the WWC Act and for the reason I have given above, in my view the applicant has failed to do so. I do so primarily on the basis of the seriousness of his disqualifying offence of buggery, his history of offending and the circumstances surrounding the events of 2000. While the buggery offence occurred many years ago, and the likelihood of him re-offending in this way again is moderately low I find he has a continuing lack insight into his offending conduct generally and the impact this has on a child. He states he would not reoffend or abuse his grandchild. However, I find he has little, if any understanding as to why he might have done what he did or how to ensure a child more generally is protected from harm.
4. Accordingly, on the basis of my findings the appropriate order is to refuse the applicant's application for an enabling order and I order accordingly. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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: 09 February 2016