BVT v Children's Guardian - [2017] NSWCATAD 111 - NSWCATAD 2016 case summary — Zoe

NSWNSWCATAD

BVT v Children's Guardian

[2017] NSWCATAD 111

NCAT Administrative and Equal Opportunity|2016-12-14

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2016-12-14

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

2016] NSWCATAD 266 BVT v Office of the Children's Guardian [2016] NSWSC 1169 BYR v Children's Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Children's Guardian v BQJ [2016] NSWSC 869 CJT v Office of the Children's Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 Category: Principal judgment Parties: BVT (Applicant) Children's Guardian (Respondent) Representation: Counsel: G Moore (Applicant) J Harris (Respondent)

[2]

[3]

Introduction

An application for an enabling order was heard previously by the Tribunal on 17 December 2015 and reasons were published on 13 January 2016 in the decision BVT v Children's Guardian [2016] NSWCATAD 12. The Tribunal panel which heard that matter was Senior Member M Anderson and General Member M O'Halloran. The application was refused on the basis that the applicant had failed to discharge the onus to prove that he is not a risk to children. The applicant appealed to the Supreme Court which determined the amended summons. Justice Adamson in the published decision BVT v Office of the Children's Guardian [2016] NSWSC 1169 found that there were errors of law in the original Tribunal decision which shall be referred to again later in these reasons.
These are the reasons the decision made following the rehearing of the application commenced on 17 April 2015 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act"). The Children's Guardian originally informed the applicant on or about 20 November 2013 that due to his conviction and sentence in 1973, of an offence of "assault with intent to rape", contrary to the now repealed section 65 of the Crimes Act 1900 (NSW), he was not eligible to be granted a Working with Children Check Clearance. The applicant was sentenced to 5 years imprisonment.
The applicant appealed the original decision of the Tribunal to the Supreme Court by filing a summons on 10 February 2016 on a question of law from the decision of the New South Wales Civil and Administrative Tribunal. The matter was remitted by the Supreme Court. The applicant sought to have the matter reheard by a differently constituted Tribunal when the matter was listed in accordance with the practice of the Tribunal before Senior Member M Anderson. There was no order of the Supreme Court that the matter be heard by a differently constituted Tribunal. An application for the remaining member of the originally constituted Tribunal in effect to be recused, was heard and determined on 22 November 2016 and the reasons for refusing that application are published BVT v Children's Guardian (No 2) [2016] NSWCATAD 266.
An order has previously been made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication and disclosure of the name of the applicant and the name of any alleged victim referred to in the material before the Tribunal. The form of that order has been varied to accord with the practice of the Tribunal. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
The applicant was advised that he was a disqualified person on or about 20 November 2013 and the application for an enabling order under section 28 of the Act was filed on 17 April 2015. On 16 July 2015 the Tribunal extended time for the applicant to file his application because it was not filed within 28 days after notice of the decision was given to the applicant and was significantly out of time.
The matter was reheard on 14 December 2016. The applicant was legally represented.
The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. An enabling order would permit the applicant to work with children in any child-related work in a paid and voluntary capacity even though the applicant seeks the order for a limited purpose. The respondent adopted a neutral position in relation to the application for an enabling order: neither in favour nor against the grant. The Children's Guardian is required to be a party to the application by reason of section 28(4) of the Act and effectively acted as a contradictor. The respondent submitted that the applicant bears the burden of proving that he does not pose a risk to the safety of children.
The formal and legal matters which are set out from this point in these reasons are repetitious of the same provisions which are set out in previous judgments of the Tribunal including the original hearing of this application. The discussion which follows is repetitive of matters set out in earlier judgments of the Tribunal, but is set out in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that 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 Civil and Administrative Tribunal Act; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children's Guardian [2015] NSWSC 523. The statement of the law applied to this decision is therefore again set out in these reasons. Additionally, the same evidence has been relied upon in this application and therefore it is also referred to again in these reasons.

[5]

Legislative provisions

The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 do not apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.
The 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.
The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.
There is no relevant definition of "child abuse" contained in the Act.
However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children's Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of "child and young person abuse" has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence 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"
In BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows: "The ordinary meaning of "child abuse" in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987."
This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition of abuse contained in section 4 (1) of the Family Law Act 1975 (Cth).
The offence with which the applicant was charged and convicted is one which falls within Schedule 2 of the Act [1] . Therefore, the applicant is treated as a "disqualified person". By reason of section 18 (1)(a) of the Act the Children's Guardian must not grant a Working with Children Check Clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as "disqualified persons", in the same section of the Act. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offence. The offence with which the applicant was charged was assault with intent to rape contrary to section 65 of the Crimes Act, in the circumstances referred to later in these reasons.
The applicant seeks a Working with Children Check Clearance to help care for a child in out of home care.
An enabling order is therefore sought pursuant to section 28 of the Act which provides in this matter: "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. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions."
The respondent, it is again observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act. The Children's Guardian is not permitted to grant an enabling order and must refuse the application because of the conviction which renders the applicant a disqualified person.
A person is not permitted to engage in "child-related work" unless they hold a Working with Children Check Clearance: see section 8 of the Act. There is no issue in this matter that the applicant wishes to engage in child-related work which therefore requires that the applicant obtains a Working with Children Check Clearance.

[7]

Required Considerations

The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are relevantly for this application: "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."
The Children's Guardian received information pursuant to section 31 of the Act from various government agencies, including the police and the courts. That information was tendered in evidence.
It must also be observed that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): BKE v Office of the Children's Guardian, at [4], [25], [27].
The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

[8]

The Issues

The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children's Guardian [2015] NSWSC 523, at [25]. 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.
The discussion which follows is repetitive of matters set out in earlier judgments of the Tribunal, but is set out in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that 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 Civil and Administrative Tribunal Act; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children's Guardian [2015] NSWSC 523; Children's Guardian v BQJ [2016] NSWSC 869. The law applied to this decision is therefore set out in these reasons.
In determining whether the applicant does pose a risk to children it is accepted that the risk 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); BKE v Office of the Children's Guardian [2015] NSWSC 523 per Beech-Jones J esp at [26], [27].
In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]: [29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ("Briginshaw") in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a "question of law". It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J). ... [31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): "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. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. 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 assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case." [32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78). [33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

[9]

Other matters

The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. 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 Civil and Administrative Tribunal Act 2013 (NSW); 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.
The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the disqualifying offence: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any other criminal charges are also able to be considered, if appropriately relevant, for the same reasons.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal 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 Civil and Administrative Tribunal Act.
The 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] NSWIR Comm 101 at [130].

[10]

Consideration of the evidence

The evidence received by the Tribunal is required to be considered under each of the eleven subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. Some of the subsections may be thought less relevant and may be given less weight than others. However, each of the subsections is to be considered. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.
The facts as recorded in Justice Adamson's judgment in BVT v Office of the Children's Guardian [2016] NSWSC 1169 are as follows: [15] Following his plea of guilty, the plaintiff was convicted on 8 June 1973 of an offence under s 65 of the Crimes Act of "assault with intent to rape". The offence was committed on …1973 when the plaintiff was 18 and the female victim was 19. The plaintiff was sentenced to a term of imprisonment of 5 years with a non-parole period of 18 months. [16] The plaintiff worked as a labourer and on farms for most of his life until his retirement at the age of 55. He drank alcohol heavily on a daily basis from the age of 15 until about 2005, except for periods spent in prison. He did not seek professional help for alcohol abuse but stopped drinking in 2005 when his general practitioner advised him that it would otherwise affect his life expectancy. [17] The plaintiff was married aged 21 and divorced aged 26. Subsequently, he met his current partner, D, with whom he has now been in a relationship for 26 years. The plaintiff helped to raise three of D's children. [18] D's granddaughter, C, who was born in 2009, was placed under the parental responsibility of the Minister. The plaintiff and his partner did not find out about C (who was the daughter of D's son) until she was two years old. They sought to have her placed in their care. As part of their application, in June 2012, Alison Kearns of Assessments Australia conducted an assessment and recommended that they be considered as authorised carers. However, it was decided that C ought to remain with her existing carer, with whom she had been living since she was nine months old and to whom she had formed an attachment. From January 2013 the plaintiff and D provided respite care for C, including overnight contact. [19] On … 2013 Family and Community Services received a report that the plaintiff had hit C. C was interviewed and stated that the plaintiff hit her with a spoon on more than one occasion. However, Family and Community Services did not consider there to have been a sufficiently clear version given by C. There were no apparent injuries and no further action appears to have been taken. The material also contains an allegation that "Nan" (the plaintiff's partner, D) hit C over the head. D also reported that C told her that her mother hit her with a spoon. [20] In about October 2014 the plaintiff was informed by Family and Community Services that they would no longer be managing C and that she would be managed by the Tamworth Armidale Aboriginal Children's Service. The transfer of responsibilities appears to have occurred in December 2014. When the plaintiff went to the usual changeover location to meet C just after Christmas 2014, C was not there. The plaintiff later discovered that the Tamworth Armidale Aboriginal Children's Service had decided that he would no longer be permitted to have unsupervised contact with C unless he could obtain a Clearance. [21] The plaintiff applied to the Children's Guardian for a Clearance under s 13(1) of the Child Protection Act. As he was a disqualified person because he had been convicted in 1973 of assault with intent to rape (an offence specified under Sch 2 of the Child Protection Act), the Children's Guardian was obliged to refuse the Clearance. Overnight contact between C and D and the plaintiff continued until 1 January 2015, including after the Children's Guardian refused the plaintiff a Clearance. Since January 2015 then the plaintiff has seen C on a supervised basis.

[11]

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

The disqualifying offence occurred in 1973 when the applicant was 18 years of age. The offence is a very serious assault with intent to rape a complete stranger which resulted in a sentence of five years' incarceration. It is therefore objectively a very serious matter which caused the refusal of a clearance.
Since the Tribunal does not have the benefit of any recorded remarks on sentence or findings of the sentencing judge, it is not possible to identify which facts were accepted by the sentencing judge and which were not apart from those which established the elements of the offence. However, the Tribunal has the benefit of documentary material including the police facts, witness statements, and a record of interview of the applicant.
The applicant has given evidence that he has little recollection of the events which occurred in 1973. The applicant may have been intoxicated at the time of the offence and this may help to explain his lack of memory. There may be other reasons for the applicant to have a limited recollection of the events since they occurred a long time ago and the applicant may wish to move on from a regrettable period in his life.
The victim described in her statement that she was walking home from a railway station with a male friend when they were approached by the applicant and another young male. The victim's friend went to the police. The victim stated that she suffered a sustained assault, with physical force exerted by the applicant including pushing her against a wall and slapping her twice. The victim stated that the applicant held a knife against her throat, and told her he would kill her if she didn't allow him to "root" her, grabbed her genital area with his hand and put his hand under her blouse and ripped it open. The witness statements describe that the victim screamed and a member of the public stopped his vehicle to find out what was happening, allowed the victim to escape in his car and drove her to the police. The police later attended the scene, located the applicant, subsequently interviewed him and he made admissions in the interview with the police.
The applicant said that the victim had been drinking at a club where he was also drinking alcohol. This fact does not appear in the victim's statement or in the other prosecution witnesses' statements. The applicant did not remember whether he held a knife that night. The applicant did not remember telling the victim that he would kill her if she didn't let him "root" her. The applicant denied ever carrying a knife in cross examination on 17 December 2015. In the police interview the applicant admitted putting one hand on her shoulder and holding a knife up against the victim's throat with the other. The applicant agrees that if the witness said that he touched her around the groin or her crotch then he did but he did not remember doing that. The applicant pleaded guilty to the offence when it was before the court.
The material produced by the police is a more reliable account of the events than those given by the applicant in his current material and when he saw his psychologist for the purposes of preparing a risk assessment for the Tribunal. It is more reliable because it is more contemporaneous than the applicant's current material and the applicant has no recollection of significant matters.
In particular, the applicant says that he followed the victim from the club and that she was alone. It is more likely that the victim and her friend give more accurate statements about being followed from the train station by the applicant and his companion. The applicant denied carrying a knife in his more recent evidence but admitted in the police interview with him using a knife during the assault. The assault ended when a member of the public intervened according to the evidence of the other witnesses and contrary to the applicant's evidence.
The Tribunal finds on the balance of probabilities that the victim's statement of events is the more probable version of what actually occurred on that night. It is corroborated by the other witnesses. The victim and her male friend were walking from the railway station when the applicant verbally abused the male friend. The applicant produced a small knife and said words to the effect: "See what I've got here." The male friend of the victim ran to a nearby house, then to the police station. The applicant followed the victim where he pushed her against a wall with one hand holding her hand and the other around her throat. The applicant put his hand down the front of the victim's blouse and ripped it. The applicant felt the victim's breasts with his hand. The applicant said: "I will kill you if you do not let me root you." The victim responded: "I would rather you killed me than raped me." The applicant held a knife against the victim's throat. The victim screamed. The applicant touched the victim between her legs and was told by the applicant to take her pants off. The victim refused. The applicant asked for some money and was given approximately $0.30. The applicant slapped the victim and lent over her to kiss her. The victim pleaded with the applicant to be let go and he told her: "I'm going to have to root you now." A person passing by in a car stopped his car and asked what was happening in response to the victim's struggling and screams. The victim said: "please help me." The applicant let go of the victim and she ran towards the car and she jumped in. The applicant went over to the car and wanted to fight the member of the public. The passerby said to the applicant: "if you say any more I will kill you." The victim was taken to the police station in the car where she was interviewed. The male companion drove with police towards the club and recognised the applicant walking down the street. The applicant was arrested.
Ms Hare, the psychologist who provided reports to the Tribunal considered that the applicant was "an inconsistent historian" which she considered reflected poor memory rather than a conscious attempt to mislead her. Ms Hare reported that the applicant was unable to recall any specific sexual thoughts prior to, or during the offence, and he was unsure whether he had been sexually aroused. Ms Hare considers that it seems realistic to assume a level of sexual intent because the applicant observed that the victim was physically attractive prior to deciding to follow her. The applicant gave Ms Hare an account inconsistent with the facts which the Tribunal has found more probable.
The offence was very serious. It was fortunate that a member of the public intervened when he did otherwise the consequences for the victim may have been tragic.

[12]

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

The offence occurred over 43 years ago.
The applicant was released on parole for the offence of assault with intent to rape, but because he breached the parole conditions he served the remainder of the sentence in gaol.
Since the offence occurred the applicant has been convicted of a number of other offences. The detail of those offences are referred to under a subsequent subheading. The applicant states that other than a couple of traffic offences he has not had any significant dealings with the police since about 1980. The applicant also states that he has not had any trouble with the police since 1991.
The lapse of time between the offence and the current application might be thought to be evidence of a minimal risk of recurrence of the offending conduct. That depends upon the reasons for the offence and whether the applicant has been able to address those issues.
The applicant was married when he was 21 years of age. The applicant divorced his wife when he was approximately 26 years of age. The applicant does not have any biological children. The applicant has been in a de facto relationship with his current partner for approximately 28 years. At the time of the commencement of this relationship with his de facto partner there were three children in the household aged 9, 7 and 5 years old.
The applicant and his de facto partner have been able to provide respite care for his partner's biological granddaughter since January 2013. Contact between the applicant and this child occurred on a supervised basis from January 2015.
The applicant and his partner were the subject of an investigation arising from a report in 2013, conducted by the Department of Family and Community Services into an allegation that the grandchild of the de facto partner had been hit with a spoon by the applicant and his partner. The allegation was not substantiated. Overnight contact continued without supervision after this allegation.

[19]

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

The applicant submitted, in the written submissions filed on his behalf, and in his evidence that he has been effectively abstinent from alcohol since 2005. It is not immediately clear how many of his criminal offences apart from the PCA offence were committed when under the influence of alcohol. The applicant submits that it is highly unlikely that he will commit any offences or conduct himself in any way that would impact negatively or harmfully on children.
It is apparent that the applicant has formed a secure relationship with his current partner who also gave evidence. This may act as a positive influence on the applicant and minimise the risk he poses to children.
The applicant relies upon the evidence of Ms Caroline Hare, psychologist who provided 2 reports.
Ms Hare had the applicant complete the Millon Clinical Multiaxial Inventory- Third edition (MCMI-III; Millon et al 2006) which she states in her evidence is an empirically validated and reliable self-report. A surprising feature of that tool is reflected in the opinion formed by Ms Hare after reading the additional material for her second report. In the first report of Ms Hare she states as follows: "[The applicant] endorsed a broad range of problematic personality traits that suggested a level of detachment from others and possible difficulties with empathy, reflecting a generally exaggerated sense of self-importance and feelings of superiority. In the past this likely encouraged him to engage in risk-taking (including illegal) behaviour without particular concern for the consequences or impact upon others. These personality traits tend to manifest in a belief that he is exempt from the conventional rules of behaviour, which perhaps provide some context for his past criminal behaviour, and possibly also for [the applicant's] absence of remedial action when he was refused the WWCC clearance in 2013. It appears that generally [the applicant] does not invest overly emotionally in relationships and is therefore content with his limited social network. Clinically he did not endorse items suggesting the presence of any disorders, although he endorsed having struggled with alcohol dependence in the past. His alcohol use appears to have been primarily a function of his high risk-taking personality traits, which are evidenced to alleviate as individuals mature."
In her second report Ms Hare states: "...I would add antisocial and narcissistic personality traits as a risk factor at the time of the offence. I continue to be of the opinion that the sexual offence was impulsive and opportunistic..."
The applicant states in his affidavit: "A lot of time has passed since my previous criminal conduct. I am not the same person today that I was when I committed those offences. I have a stable life and a family. I just want to be able to have a relationship with my granddaughter."
The length of time since the last recorded offence is significant. It was in 1990: 27 years ago.
Ms Hare's assessment based upon the STATIC-99 (Harris et al 2003) risk assessment tool places the applicant in the moderate-low risk category. According to the risk assessment tool manual it identifies that out of 100 offenders presenting with the applicant's score on the tool, "approximately 5 will be re-convicted of a sexual offence in the next 5 years, and 8 will sexually recidivate within the next 10 years." As observed by Ms Hare at [38] "[r]econviction rates inevitably underestimate the true rate of reoffending" and the tool cannot tell which "individual will fall into the percentage of offenders who sexually recidivate at the level of risk identified."
Ms Hare also utilised the Risk for Sexual Violence Protocol (RSVP; Hart, Kropp & Laws, 2003) and assessed the applicant's level of dynamic risk of sexual violence as low. The primary factors identified by Ms Hare that increased the likelihood of committing a sexual offence in 1973, are as follows: 1. "Willingness to use physical coercion to meet his needs and further the commission of the sexual offence; 2. Limited self-awareness of the motivation for committing the offence, or what placed him at heightened risk; 3. Problems with alcohol use providing a further disinhibiting factor; 4. Problems with employment; 5. Engagement in generally elevated levels of criminality, reflecting antisocial attitudes and beliefs; 6. Problems with making an[d] implementing prosocial life planned, reflected in his hedonistic lifestyle which evidence a general absence of concern for consequences, failure to live by societal norms, and absence of accountability associated with increased community stability; 7. Problems accepting and benefiting from supervision."
Ms Hare also identified secondary risk enhancing factors which were present in 1973. Of the risk enhancing factors Ms Hare only identified the presence of one of those currently, which is the applicant's employment instability.
The applicant and his partner were assessed by Assessments Australia for the purposes of determining whether he and his partner were suitable to be authorised to provide care for his partner's biological grandchild. That assessment is annexed to the affidavit of the applicant. The assessment was completed on 10 June 2012. It appears from the assessment report that the child was removed from the care of her mother and paternity testing identified the applicant's partner's son as the biological father. The applicant's partner had not been aware of the existence of this grandchild prior to the Children's Court proceedings and the paternity testing. The assessor observed interactions between the applicant and this grandchild as part of the assessment. The applicant and his partner demonstrated considerable warmth to the child. The report referred to the fact that the applicant's partner has 2 daughters who carry a genetically inherited disease. The applicant's partner's son has a different father to those daughters and therefore does not carry that gene. The assessor stated (at page 6) that genetically inherited disease is described as: "... A rare presumed autosomal recessive syndrome with pre and post natal growth retardation, microcephaly, characteristic facial experience, seizures, unusual palmar creases and developmental delay."
Neither the applicant nor his partner, according to the assessor, showed insight into the possible attachment issues surrounding the fact that the granddaughter had been in the care of the current authorised carer for almost 2 years at the time of the assessment.
In the assessment report by Assessments Australia reference is made (at page 5) to the fact that the current partner of the mother of the grandchild is known to the applicant. About this person the applicant said: "I do not want [that named person] near this house he is a real troublemaker he has thrown firebombs at the house, wrecked tyres I am really worried about his behaviour-I do not know him but I cannot control what he does-I can manage [the applicant's partner's son who is named]'s behaviour but I do not have any control over [the first named person]."
The applicant's partner's son apparently has a criminal history relating to alcohol and drug use and had been in trouble or "a fair bit of strife for being drunk, assaults and fights" according to the applicant's partner recorded in the Assessments Australia report at page 5. The applicant also acknowledged that the son had been difficult and had spent too much time with alcohol consumption and getting into fights (at page 6 of the report).
The applicant's partner has one of her daughters living in a group home but could not identify to the Assessments Australia assessor where she was living. That daughter was apparently placed into care by the Department of Family and Community Services, according to information provided to the assessor. The youngest daughter remained living with the applicant and his partner. The applicant's partner is that daughter's carer due to the daughter's special needs. As a result, the daughter spends most of her time at home with her mother, apart from an outing once a week.
The Assessments Australia report recommended that the applicant and his partner be authorised as long-term kinship carers and if that does not occur they be authorised as respite carers, subject to 6 concerns identified at page 17 of the report. The first of those concerns was the circumstances or the reasons for placement of one of the daughters in a group home and removal from the care of the applicant's partner. This factor is not well developed and few, if any, reasons are articulated in the evidence of the applicant. The second concern is whether there were any other reports about welfare and well-being of the other children. The third concern was clarification about the applicant's criminal history. The fourth matter of concern is the applicant's partner's health status. The fifth matter of concern is the child's attachment to her current carer and impact on her if she was moved to another placement. The sixth matter of concern is the necessity for supervised contact and long-term arrangements for the child.
The applicant was seen by Dr Robbie, a psychiatrist on 31 May 1973. The applicant told the psychiatrist his early history including his criminal history and alcohol intake. The psychiatrist expressed the following view: "He was not particularly interested in discussing the offence, and he thinks he was just drunk. He gives the impression that it is all past history now and that there is little point in getting upset about it all, as his future will be taken care of for some considerable time. This impression of unconcern that he gives is I am sure only a superficial one; underneath I think he is fairly alarmed. I could not get through to him however. In view of his past history of aggressive propensities I found him curiously placid and unaggressive. It may be that he has more than the ordinary drive and that this has been misinterpreted throughout his childhood, turning him into a rather angry person who has trouble accepting a powerless Aboriginal role. This is a surmise however. On the surface he would appear to be a poorly educated and lowish normal intelligence (I could be wrong about this) Aboriginal of disadvantaged background, who has a long history of aggressiveness and instability, and who has shown little evidence recently of settling down. Indeed he has been out of work and drinking. He did not seem particularly disturbed or menacing when I saw him however, and I assume that alcohol will substantially involved in this offence. Despite what has happened he may not be quite severe personality disorder that his history suggests, but I cannot be confident in this."
In a Probation and Parole Report dated 1973, it is said that the applicant obtained most of his education during his stay in various institutions from the age of 13. Reference is made to an assessment of intelligence in 1968 which places the applicant in the 'mentally handicapped group' with an IQ score of 54. It was also said that "he was emotionally deprived and had no sense of social norms nor did he experience feelings of guilt". This is no doubt the reason for Dr Robbie expressing the view that his history suggests a severe personality disorder (presumably those narcissistic and antisocial personality traits identified by Ms Hare as a risk factor). There is no recent psychiatric assessment of the applicant provided to the Tribunal. Even after the previous refusal of the enabling order leading to the Supreme Court appeal there has been no additional psychiatric assessment when this deficiency was a matter of comment in the original decision. Ms Hare, the psychologist who provided risk assessment evidence to the Tribunal, did not undertake formal testing of the applicant's intellectual functioning, but formed the opinion that the applicant is functioning in the below average range and his insight into his behaviour was limited.
The other witnesses who gave statements at the time of the offence did not support the version given by the applicant. The Tribunal prefers the evidence given by the other witnesses to that of the applicant. The Tribunal has made a finding on the balance of probabilities that the correct version of events is not the applicant's version. The applicant has not, to use the vernacular, 'come to grips' with the factors which identify the seriousness of the offence and referred to previously despite his expressed remorse. The applicant has limited insight into the effects of his behaviours and has a limit to his capacity to gain insight. Until there is an acknowledgement of the extent of the past abusive behaviour and sustained positive effort to address that behaviour and its causes, it is the assessment of the Tribunal that the likelihood of a repetition of that behaviour is significant because the risk of the trigger for that type of aggressive behaviour is not identified and the applicant cannot provide evidence to the Tribunal that it will not be likely to reoccur. This is a well-recognised aspect of risk assessment particularly in relation to the risk to vulnerable children and is part of the information necessary to assess the magnitude of that risk: see BKE v Office of the Children's Guardian [2015] NSWSC 523; M v M [1988] HCA 68; 166 CLR 69.
In SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [62], per Basten JA (Ward and Simpson JJA agreeing) where a child had suffered massive life-threatening head injuries which were held to be inflicted injuries: It should also be noted that the structure of the judge's reasoning was said to rely upon a passage from the reasons of Mitchell SCM in Re Anthony. In fact, the passage may be traced to the judgment of Hodgson J in the Equity Division in T v H, [at page 18] explaining why he was satisfied that the child in that case would be in danger if he were to be returned to the care of his parents. "Had there been an explanation of his injuries, the result may have been different. If the cause of the injuries was known, and was acknowledged by the person responsible, one could assess the likelihood of that person acting again so as to cause the injuries. It would be possible to assess the risk involved to the Plaintiff, and to weigh that against the advantages of returning the Plaintiff to his parents. However, in the absence of any explanation, it is far more difficult to assess and weigh the relative advantages and disadvantages in this manner." (emphasis added, footnotes omitted)
While this application is far removed from unexplained injuries to children, the principles which are relevant in assessing the likelihood of repetition of abusive/violent behaviour are instructive: SL v Secretary, Department of Family and Community Services [2016] NSWCA 124; T v H and Ors [1985] NSWSC, Unreported 19/12/1985; SS v Department of Human Services (NSW) [2010] NSWDC 279 at [111]-[114]; BHY v Children's Guardian [2015] NSWCATAD 91. It is not simply a matter of saying that the difference is that now the applicant is abstinent from alcohol misuse. While that factor may reduce the risk it ignores other factors which lead to the risk being assessed as at least 'moderate-low' in the original assessment of the psychologist, Ms Hare, utilising the STATIC-99 risk assessment tool. It is noted that Ms Hare came to the conclusion that the applicant's risk to children's safety is commensurate with the risk of any adult member of the community (i.e. a non-offender) harming a child despite the more objective assessment achieved utilising the "gold standard" STATIC-99 actuarial risk assessment tool. Ultimately it is the Tribunal which must determine the level of risk.
It is the Tribunal's opinion that the applicant's vague memory of the offence and his minimisation of the extent of his role together with the inconsistent account of the events are partially explained by the combination of feelings of guilt or shame, difficulties with the applicant's memory, and the possibility of a high level of intoxication at the time of the offence. The applicant also has limited insight overall to his psychological functioning which presents a current risk factor according to the oral evidence of Ms Hare on 17 December 2015.
The applicant has antisocial and narcissistic personality traits identified by Ms Hare which were considered to have been prominent at the time of the offence, but have decreased in prominence due to maturation and a more stable lifestyle. The period of time that has elapsed since the applicant has been convicted of any significant offence is partially explained by the traits decreasing prominence. However, as described by Ms Hare, these personality traits remain and are "not helpful traits necessarily... for child protection."

[22]

Consideration and determination

Justice Adamson in BVT v Office of the Children's Guardian [2016] NSWSC 1169 upheld the appeal to the Supreme Court on three grounds. It was held that the Tribunal had erred in finding that the applicant, in entering a guilty plea to the 1973 offence, had accepted the facts alleged in the statement of facts and witness statements. The matters then in those documents were erroneously elevated by the Tribunal to the status of findings by the sentencing judge and admissions made by the applicant. [2] Her Honour also noted that the Tribunal was not bound by the laws of evidence and was therefore entitled to take into account the contents of the documents produced by the District Court, including the plaintiff's record of interview, witness statements and police facts. [3]
The judgment of Justice Adamson also held that the Tribunal had failed to give sufficient reasons to explain why the applicant had not discharged the onus in light of the following matters [4] : 1. the length of time since the disqualifying offence occurred; 2. the applicant's youth and intoxication at the time of the disqualifying offence; 3. the applicant's extended period of not offending; 4. the applicant's prolonged period of sobriety.
These matters to which Justice Adamson referred in her decision could lead to an inference of successful rehabilitation although the Tribunal was not bound to grant the enabling order simply because of those matters. [5] In fact, the Tribunal is not able to find that there is sufficient evidence of successful rehabilitation, on the evidence before the Tribunal; instead there is simply the passage of time and chronological maturation of a person who has limited insight into the behaviour which led to a very serious offence which totally disregarded the rights of a vulnerable female. The seriousness of the offence is a matter which may be, and in this matter is given greater weight in terms of the risk assessment than the passage of time and a substantial period of sobriety.
The applicant has been convicted of an offence which renders him a disqualified person for the purposes of the Act. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. The behaviour in relation to the offence was apparently unplanned and opportunistic and exhibited a lack of self-control and incapacity to implement any strategies to prevent their occurrence.
The behaviour, if repeated, would do significant harm to any victims. The paramount principle under the Act includes protection of children from suffering abuse. It is fortunate that children have not been directly impacted by the behaviour of the applicant. It is presumed under the Act that because of the conviction the applicant poses a risk to children.
There is a lack of evidence of mitigating factors such as examination of the reasons for the offending behaviour or the development of insight into his behaviour. The applicant may have limited cognitive capacity in order to be able to develop sufficient insight. Ms Hare, the psychologist who provided risk assessment evidence to the Tribunal, did not undertake formal testing of the applicant's intellectual functioning, but formed the opinion that the applicant is functioning in the below average range and his insight into his behaviour was limited.
Remorse on its own is not considered to be a factor that mitigates risk and without more than an expression of such sentiment, is a hollow response to an existing behavioural reaction. The applicant told Ms Hare that he had "felt sorry afterwards" in relation to the offence which renders him a disqualified person. It is clear that the events for which he expresses remorse are not the same as the facts which have been found by the Tribunal. Similar expressions of regret are provided to the Tribunal. Ms Hare notes that other professionals have referred to the applicant's "indifference to the consequences of his actions" (the probation and parole officer), and the observation by Dr Robbie, psychiatrist, referred to earlier in these reasons, that: "This impression of unconcern that he gives is I am sure only a superficial one; underneath I think he is fairly alarmed."
The Tribunal has been provided an account of the offending behaviour which led to the applicant becoming a disqualified person which is significantly different to the actual facts which occurred, as found by the Tribunal earlier in these reasons. The personality traits identified in the assessment tool, Millon Clinical Multiaxial Inventory- Third edition (MCMI-III; Millon et al 2006) are to some extent validated by the second report of Ms Hare, as previously extracted, which states: "...I would add antisocial and narcissistic personality traits as a risk factor at the time of the offence. I continue to be of the opinion that the sexual offence was impulsive and opportunistic..."
Ms Hare previously identified a level of detachment from others and possible difficulties with empathy, reflecting a generally exaggerated sense of self-importance and feelings of superiority experienced by the applicant. This is suggested as the likely impetus for him to engage in risk-taking (including illegal) behaviour without particular concern for the consequences or impact upon others. These narcissistic and antisocial personality traits tend to manifest in a belief that the applicant is exempt from the conventional rules of behaviour, which perhaps provide some context for his past criminal behaviour, and possibly also for the applicant's absence of remedial action when he was refused a clearance in 2013. It appears that generally the applicant does not invest overly emotionally in relationships and is therefore content with his limited social network. This is also consistent with a level of detachment and difficulties with empathic attunement towards others.
Remorse on its own is not considered to be a factor that mitigates risk. In this matter there is remorse expressed by the applicant. The applicant stated that he was "gutted" and sorry for what he had done when he committed the disqualifying offence.
The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk may err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
The length of time since the disqualifying offence is a factor which weighs in the applicant's favour. However, the applicant cannot show what, if any, psychological progress has been achieved by the applicant during that significant period of time. The applicant is much older but has not been able to show any maturation in his acceptance of responsibility for his previous actions which he appears to avoid by a failure to engage emotionally and by exhibiting unconcern for the offence. The applicant has not engaged in prosocial behaviours for example by volunteering and engaging in other altruistic broader social pursuits to compensate for his prior antisocial behaviours. There is little evidence of his change in attitude towards people beyond his limited circle. The reduction of the applicant's alcohol consumption coincided with advice from his GP that his long term health will suffer if he did not cease alcohol use. It is a positive aspect but the reasons for ceasing problematic alcohol use are centred upon the end benefits to the applicant rather than mitigation of risk to others. Alcohol use also does not of itself explain the violent and antisocial behaviours in the applicant's past but merely acted as a facilitator of disinhibited behaviours.
For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his prior behaviour in the presence of children or if it is directed to children. The legislature has prescribed certain offences such as the applicant's to be disqualifying offences even if they do not relate to children. The onus to prove otherwise is placed upon the applicant.
The applicant has not discharged the onus to prove that he does not pose a risk to the safety of children. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

BVT v Children's Guardian

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (13)

Cases Cited (36)