Children's Guardian v CKF [2017] NSWSC 893 at [55]
Children's Guardian v CXZ [2019] NSWSC 1083
DAR v Children's Guardian [2018] NSWSC 942
M v M (1988) 166 CLR 69
Source
Original judgment source is linked above.
Catchwords
Children's Guardian v CKF [2017] NSWSC 893 at [55]Children's Guardian v CXZ [2019] NSWSC 1083DAR v Children's Guardian [2018] NSWSC 942M v M (1988) 166 CLR 69[1988] HCA 68
Judgment (28 paragraphs)
[1]
The applicant's diagnosis of paedophilic disorder, for which he has been receiving psychiatric treatment.
According to the Diagnostic and Statistical Manual of Mental Health Disorders (DSM-5)(American Psychiatric Association), a diagnosis of paedophilic disorder pertains to a person who has a sexual desire for prepubescent children as well as the presence of significant distress, interpersonal impairment or any other difficulties due to these sexual interests.
For over two years, the applicant has been taking daily medication to lower his level of testosterone, has attended regular counselling and has restricted his contact with children in any child-related employment to reduce the level or likelihood of risk that he poses. He has blood tests to monitor his dosage and compliance of the medication.
In addition to this, the applicant previously implemented a 'Family Action Plan for Change' prepared by FACS in September 2018 which includes the following undertakings:
1. [DWD] will continue his treatment with his psychiatrist;
2. [DWD and his wife will ensure the family has emotional support;
3. [DWD] and his wife will implement safe family rules, including closing the door to get changed or shower and knocking before entering someone's bedroom;
4. If there are any children staying over at the house other than their own children, [DWD's] wife will always be present and safe family rules will be explained and supervised by [DWD's] wife;
5. [DWD] will not have a face-to-face role with children in the family businesses at this point in time and if this changes and [DWD] plans to resume a role where he will have face to face contact with children, [DWD] and his wife will notify FACS to discuss any safety and risk concerns for these children.
The applicant's treating psychiatrist confirmed that he has been seeing the applicant on a fortnightly basis since September 2017 and will continue to do so for the foreseeable future.
According to the psychiatrist:
[DWD] has been compliant with, and responded well to, treatment program to date. In addition to ongoing psychotherapy, he is currently prescribed testosterone lowering medication, Cyproterone Acetate (Androcur) 150mg daily, with clinically significant and sustained reduction in his blood testosterone levels, and reported good control of his heterosexual paedophilia.
The reasons (or cause as to) why some men have this specific sexual orientation remains unclear, however, treatment with testosterone lowering medication, such as Androcur, is considered the most effective treatment for this condition, and when implemented successfully, as in [DWD's] case, can and does adequately manage the risk of patients engaging in heterosexual paedophilic behaviours.
As such, his risk to children is currently adequately and appropriately managed from a psychiatric perspective at this stage, including within the family and the workplace. If at any stage, it became apparent that [DWD] was not compliant with and/or responding adequately to the psychiatric treatment and risk management program then, in addition to my legal and/or ethical requirements, [DWD] has consented to me to report my concerns to New South Wales Family and Community Services (FACS) and the NSW Office of the Children's Guardian.
As a result of his diagnosis, the applicant was placed on the Department of Education's 'not to be employed' (NTBE) list but was later removed from this list on agreement by the applicant that he would not apply for paid or volunteer work with the Department of Education pending the outcome of their risk assessment, that he would advise when he had completed his teaching subjects, would continue medical treatment and provide approval for his treating psychiatrist to be contacted.
The applicant made the following observations in relation to his diagnosis:
A major issue here is that the terminology and diagnosis of paedophilia is grossly misunderstood and the majority of research conducted on people diagnosed with paedophilia is based on offending individuals and as a result the term paedophilia and child sexual abuse have become conflated. More recent understanding indicates that many people with paedophilia, myself included, hate their involuntary desires, do not act on their desires due to moral and ethical reasons and often do not seek crucial treatment specifically, due to social stigmatisation and the inability of society to differentiate involuntary feelings towards the children and sexually abusing children.
I have dedicated my entire working life (20 years) to the care, education and protection of children and young people. I have contributed a substantial financial investment over the past 10 years and up skilling my knowledge as an educator and as a result I'm known within the local community as a reputable practitioner within the field of..education and..care, with a particular focus on social inclusion and behaviour guidance. On the completion of my Bachelor of Education..degree, I plan to further advance my qualifications and professional knowledge with the completion of my Masters of Education.
While I'm not acquainted with the exact report made to FACS, it is my understanding through direct conversation with [my psychiatrist] that whilst there was no direct allegation made against me and my 10-year-old daughter it was determined by [my psychiatrist] after advice from his legal department that given the circumstances surrounding my voluntary treatment..that information should be shared with FACS on the reasoning that it was his role to provide treatment to myself for my mental health condition and not to investigate whether or not I pose to risk to my family, nor was he acquainted with the knowledge of whether or not I was already known to…FACS.
I would like to make it clear that my treatment with [my psychiatrist] is predominantly to assist me to cope with the guilt and shame I feel on a daily basis caused by an involuntary biological condition and not because I feel my desires are difficult to resist or that I'm a risk to children in any way.
As a heterosexual male, though I'm happily married…there are times when I may find another adult female attractive. However my beliefs towards marriage and my moral and ethical understanding of right and wrong means I would never act on these attractions and that it is the same regardless of the age of the female.
According to the applicant:
Most experts agree that although paedophilic interest cannot be changed at will, the behavioural expression can be successfully controlled through the combination of psychotherapy and pharmacological intervention in order to comply with the standards of a society that does not permit child sexual abuse and therefore can live productive, happy and law-abiding lives in the presence of children.
In relation to a diagnosis of paedophilic disorder, the applicant's psychiatrist gave the following opinion:
Whilst in the broader psychiatric literature, it is generally accepted that men suffering Heterosexual Paedophilia can and do pose a risk to female children, this is generally referring to such men who are not being effectively treated for this condition.
Furthermore whilst the level of evidence for the effectiveness of biological treatments, such as testosterone lowering medication, for men suffering Heterosexual Paedophilia, is limited and significantly impacted by methodological and ethical issues; it is generally considered an effective intervention in treating the Heterosexual Paedophilia urges and fantasies in these men, and thereby assisting them in not acting on these urges and fantasies, and is increasingly being implemented on an international basis.
The applicant has been taking the testosterone-lowering medication, Androcur, since September 2017 and in a report dated 19 August 2019, his psychiatrist considered the effect of the medication, stating that:
[DWD] told me that the reduction in sexual urges since commencing the [medication] has been more pronounced in relation to female children than adult females, with the level of sexual urges towards female children steadily reducing to the extent that over the past 15 months he has reported that he was not having any sexual urges or fantasies towards female children.
According to his psychiatrist:
it may be reasonable to assume that while prescribed..with Androcur, and whilst the testosterone levels remain significantly reduced, the risk that he would pose of engaging in sexual activity with female children would be reduced to an acceptable and manageable level, and reduced to less than that of adult men in the community who are working with children and who suffer and identified and untreated heterosexual paedophilia.
The psychiatrist confirmed his treatment of the applicant as being a combination of medication and psychotherapy, with counseling to assist the applicant to gain insight into his condition. He agreed that the applicant realizes that his sexual urges are morally and sexually inappropriate and that he requires treatment for them. The psychiatrist agreed that the applicant believes that he is able to manage his risk by taking medication, and that he believes himself not to be a risk to children and that a significant reason for this is because he is taking medication that reduces his sex drive.
The psychiatrist told the Tribunal that it is his view that the applicant doesn't want to remove himself from children but instead wants to treat his paedophilia by taking medication to make the attraction manageable. He agreed that if the medication were to be stopped, the applicant's primary protection factor would be removed but advised that if the medication were to be stopped, testosterone levels may take months to return to pre-medication levels, and that not taking medication for a few days would not have much effect. He agreed that the applicant's relationship with his wife was a protective factor against fantasising about children. He agreed that the applicant had never spoken about wanting to have sexual contact with a child; instead his concern was to remove sexual fantasies and urges.
The Children's Guardian engaged the psychiatrist, Dr Stephen Allnutt, to prepare a risk assessment report for the applicant in relation to these proceedings.
Dr Allnutt gave the following risk assessment for the applicant:
He falls into a group of people whose risk for sexually offending with pre-pubescent children, particularly female children, by virtue of having a paedophilia, would be regarded as higher than people in the general population who do not have paraphilia.
However having regard to the RSVP (Risk for Sexual Violence Protocol, which was administered for the applicant) the applicant would be regarded as falling into a group of individuals at low risk of sexual offending as compared to other sexual offenders.
In the absence of evidence of attraction to pubescent or post pubescent children under age 18, his risk to pubescent and post-pubescent children would be regarded as equivalent to other members of the general population.
In relation to treatment for paedophilic disorders, Dr Allnutt said:
The general view is that biological treatment can be effective in individual cases by reducing sex drive, interest and urges to act; and psychological treatments assists by addressing cognitive distortions that arise that might undermine internal psychological inhibitors (such as awareness of consequence, sobriety, modulation of mood and irrationality of justifications) and relapse prevention by intervening in regard to potential offense pathways.
According to Dr Allnutt, the applicant's risk level could be increased by psychosocial factors such as the emergence of major depression, a breakdown in his marital relationship, unemployment, social isolation, and substance abuse, by contributing to an aggravation of urges associated with paedophilia, occurring in the context of access to children and opportunity to act.
In oral evidence, Dr Allnutt said that determining risk for the applicant was difficult given that he has never actually offended against a pubescent or post-pubescent child. Dr Allnutt explained that men and women's response to pubescent and post-pubescent children is biological - we are programmed to respond to pubescence - but most do not act on these urges. It is Dr Allnutt's view that the applicant's risk to pubescent and post-pubescent children is probably the same as the general population, while his risk to pre-pubescent children and pubescent children closer to pre-pubescence would be higher than for the general population.
Dr Allnutt told the Tribunal that by taking testosterone-lowering medication, the applicant would find it easier to distract himself. Dr Allnutt also noted that the applicant reported voluntarily, took himself out of the workplace and implemented protocols within the household to protect himself and his children. He also noted that the consequential cancellation of his working with children check clearance had been triggered by his own actions in voluntarily disclosing his disorder.
When asked what other strategies apart from the medication regime that the applicant could put into place to avoid stimuli giving rise to his paedophilic urges, Dr Allnutt replied 'the only way to avoid that is to avoid children.' He said that other strategies would include avoiding unsupervised access to children, avoiding stimuli from the internet and avoiding alcohol, so as not to risk becoming intoxicated around children.
[2]
Conclusion
We accept the expert evidence before us that a person can be diagnosed with paedophilic disorder without ever having displayed any offending behaviour against children.
We also accept the expert evidence that although the disorder is a lifelong condition, it can be managed through treatment involving testosterone-lowering medication and counselling. On the evidence before it, we accept that the applicant's paedophilia is currently being managed such that his sexual urges have so reduced that he has reported not having any sexual urges or fantasies towards female children for well over a year.
[3]
FACS notification
If a person who is a mandatory reporter has reasonable grounds to suspect that a child is at risk of significant harm, and those grounds arise during the course of or from the person's work, it is the duty of the person to report to the Secretary of the Department of Family and Community Services the name, or a description, of the child and the grounds for suspecting that the child is at risk of significant harm. (s27 Children and Young Persons (Care and Protection) Act 1998).
The identity of a person who makes such a report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body except with the consent of the person who made the report. (s29 Children and Young Persons (Care and Protection) Act 1998.)
In this case, the applicant's psychiatrist gave his consent for his identity to be disclosed.
Although the psychiatrist began to treat the applicant in September 2017, he did not make a notification to FACS until March 2018. In explaining this delay, the psychiatrist told the Tribunal that he had been under the impression that he was not a mandatory reporter and only received legal advice to the contrary some months after the commencement of his treatment of the applicant.
[4]
Wife's discussion with daughter
The psychiatrist's concern was triggered following a consultation with the applicant's wife. In oral evidence, the psychiatrist explained that the applicant's wife had told him she'd had a discussion with her daughter because of her concerns. The psychiatrist did not interrogate the applicant's wife about this statement and had had no information to confirm her concerns. The discussion with the applicant's wife did, however, raise concerns for the psychiatrist that there may be reasonable ground to suspect sexual abuse had occurred. This didn't mean he believed that sexual abuse had occurred, simply that there were reasonable grounds for the suspicion, which activated his duty as a mandatory reporter.
The applicant's psychiatrist did not oppose the applicant's contention that his wife's concerns for their daughter came after rather than before the disclosure of his attraction to children, telling the applicant:
I can't remember. I'm happy if that is your recollection not to disagree with that.
The circumstances leading to the applicant seeking treatment from the psychiatrist came into contention in the course of these proceedings.
In his report dated 8 August 2019, the applicant's psychiatrist provided the following background to his treatment of the applicant:
[DWD] was referred to me by his General Practitioner via his Solicitor after what I understand to have been discussions between [DWD], his parents, his wife, his wife's parents and his wife's sister, that raised concerns regarding his relationship with his then 10 year old daughter…[DWD] presented requesting assistance from me in developing strategies towards controlling sexual urges towards females in general, both adult females and female children… He has remained adamant that he had not acted on these sexual urges towards prepubescent and postpubescent female children, and that the sexual urges had not affected his conduct in the workplace.
The applicant provided the following chronology which led to him seeking psychiatric intervention:
1. He had become aware of an involuntary sexual attraction to his then ten-year-old daughter.
2. His awareness of this had made him become irritable and depressed.
3. When questioned by his wife as to his behaviour, he told her about his sexual attraction to children.
4. Upon hearing this, his wife became concerned for their ten-year-old daughter and had a discussion with the child.
5. A family conference was held between the applicant and his wife and their respective parents and it was decided that, given his child-related work, the applicant should seek legal advice.
6. The applicant received legal advice to step down as a director of his companies and to avoid face-to-face contact with children. The solicitor also advised the applicant to get psychiatric treatment, recommending the psychiatrist who the applicant has now been seeing since September 2017.
Counsel for the Children's Guardian disputes this chronology, submitting that the applicant only disclosed his sexual interest in children after the applicant's wife had raised her concerns with her ten-year-old daughter, who had not allayed these concerns. This had triggered the family meeting after which the applicant had sought first legal advice and then psychiatric treatment.
For the following reasons, we accept the applicant's chronology rather than the chronology put forward by the Children's Guardian.
The Tribunal found the applicant to be a truthful and forthright witness who, in his evidence, stated that his wife had only raised concerns with the couple's daughter after he had disclosed his involuntary sexual interest in children. We accept this evidence, together with the evidence that the applicant and his wife subsequently spoke to the couple's respective parents as a result of which - and with the family's support - the applicant sought first legal advice then psychiatric treatment.
The applicant denied ever asking his wife to say anything to assist him. In response to the query by Counsel for the Children's Guardian as to why the applicant had not called his wife as a witness in these proceedings, the applicant replied that there was enough material before the Tribunal to support the applicant's chronology without his wife's evidence.
We note that the Children's Guardian could have called the applicant's wife but did not.
In oral evidence before this Tribunal and as set out above, the applicant's psychiatrist was unable to contradict the applicant's evidence that his wife's concerns for their daughter came after rather than before the disclosure of his sexual attraction to children.
Furthermore, we find the applicant's evidence as to his stated chronology of events is corroborated by the following series of notes taken by FACS caseworkers for the applicant's family:
We explained to [the daughter] that we were told that her mum was worried about her and spoke to her about this worry around Christmas time. [The daughter] did not disclose anything that suggested she had been sexually harmed. [Caseworkers] then spoken to [DWD] and [his wife]. [DWD] stated that he has always had an attraction to young girls particularly 'pubescent' and as he had got older this has become more inappropriate. [DWD] stated that it is a feeling and an urge that he has felt shame about and wishes he could 'cut it out with a knife.' [DWD] stated that he has never acted on his attraction or urges with young girls and he has never sexually harmed [his daughter] or any other child. [DWD] stated that he decided to tell [his wife] about his feelings in August 2017 and he began seeing [his psychiatrist] in September 2017. [DWD] is now on 150mg of Androcur which lowers his testosterone. He stated that he is now feeling no sexual urge.
Further FACS caseworker notes provide as follows:
After [DWD] told [his wife] that he has an attraction to young girls, [his wife] made the decision to speak to [the daughter] about keeping herself safe, appropriate and inappropriate touching and safe people. [DWD and his wife] then told [their] parents to involve them in supporting [the wife] to keep the children safe and to reduce the risk.
An interview was held with the applicant and his wife from which the following notes were taken:
We then spoke to [the wife] and [DWD]. [DWD] was very forthcoming with information. He told us he had always been attracted to a particular age group of females (10-14 years) and as he got older this become more and more inappropriate. He told us that he hated the way he felt and it was a part of him he wishes he could 'cut out with a knife.' [DWD] and [his wife] described [DWD's] mental health becoming a concern, he was snapping at everyone including the children, he was always depressed and he was spending long hours working. [His wife] stated that this is when she approached [DWD] (approx. July 2017) and he told her everything. They then made the decision to tell [their] parents and sought legal advice. [DWD] was advised to take a number of steps related to the family businesses including 'stepping back' and seeking treatment support. [DWD] was provided with [his treating psychiatrist's] details through his solicitor.
Suspected sexual abuse was not indicated as a danger, with the following remarks provided:
This danger was considered but NOT identified… The reporter stated that [the wife] had suspicions and spoke to [the daughter'] about these suspicions and [the daughter] confirmed this. The family then supported [DWD] to seek help from [a] forensic psychiatrist…[The daughter] did not disclose anything that suggested she had been sexually harmed. [DWD] stated that he has never acted on his attraction or urges with young girls and he has never sexually harmed [his daughter] or any other child. [DWD] stated that he decided to tell [his wife] about his feelings in August 2017 and he began seeing [his treating psychiatrist] in September 2017.
On the evidence before us and as considered above, we are satisfied on the balance of probabilities that it was the applicant's disclosure of his sexual attraction to children - in response to his wife questioning him about his depression and irritability - that triggered her concern and subsequent conversation with the couple's then ten-year-old daughter rather than any prior concerns she'd had in relation to the child.
[5]
Applicant's evidence
The applicant told the Tribunal that he has taken himself away from face-to- face contact with children in the workplace and now worked managing his businesses. He put these measures in place to ensure professional boundaries were complied with and avoid any allegations being made against him. He insisted that he did not consider himself a risk to children.
He confirmed that he continues to take his medication on a daily basis and has never missed his medication. He described the benefits of the medication as having stopped his attractions to children, and having been good for his mental health and as providing a way to manage something he doesn't want to have.
[6]
FACS investigation following notification
Following the notification from the application's psychiatrist, FACS caseworkers spoke to the applicant's then ten-year-old daughter, in the absence of her parents. During this interview, she did not disclose any information that suggested she had been sexually harmed.
Notes for the interview with the applicant's daughter state, in part, as follows:
[The daughter] referred to a time when Dad yells, got frustrated and angry. During this time [the daughter] said Mum would tell Dad not to talk to the kids that way and Dad would stop. [Daughter] said, 'it wasn't that bad'; usually when Dad was on the phone or trying to do work. [Daughter] said things have changed and Dad seems more calm and able to wait when kids are noisy..[The daughter] was able to share that she enjoys her mum and dad being at home and in particular that her dad doesn't work so much.
FACS consultation details, dated 22 June 2018, provide as follows:
We explained to [the daughter] that we were told that her mum was worried about her and spoke to her about this worry around Christmas time. [The daughter] did not disclose anything that suggested she had been sexually harmed. [Caseworkers] then spoke to [DWD] and [his wife]. [DWD] stated that he has always had an attraction to young girls particularly 'pubescent' and as he had got older this has become more inappropriate. [DWD] stated that it is a feeling and an urge that he has felt shame about and wishes he could 'cut it out with a knife.' [DWD] stated that he has never acted on his attraction or urges with young girls and he has never sexually harmed [his daughter] or any other child. [DWD] stated that he decided to tell [his wife] about his feelings in August 2017 and he began seeing [his treating psychiatrist] in September 2017. [DWD] is now on 150mg of Androgen, which lowers his testosterone. He stated that he is now feeling no sexual urge.
In a Risk Reassessment Decision Report dated 16 October 2018 and prepared by a FACS caseworker in relation to the applicant's children, the total risk score awarded was zero and the final risk reassessment level listed as low.
In relation to the applicant's then ten-year-old child, the following was noted:
There is no information from education or health to suggest there are any concerns. The school stated that [she] excels at school, she is academically a high achiever…she is a student leader and is involved [in] several extra curricular activities.
One of the applicant's other children was said to display traits of ADHD but this was not noted as impacting on his education or development. No concerns were raised for the remaining children.
In a letter from the FACS caseworker closing the file for the applicant's children, the applicant was reminded of the importance of continuing his treatment plan with his treating psychiatrist and following any recommendations he may have to ensure the risk for the children remains low.
On the basis that the FACS investigation concluded that there were no concerns in relation to the applicant's daughter in addition to the evidence provided by the applicant himself, we find that the allegation or concern that the applicant may have sexually abused his ten-year-old daughter to be groundless.
[7]
Consideration of the s30(1) matters
As set out above, in determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings.
[8]
The seriousness of any matters that caused a refusal of a clearance or the imposition of an interim bar. (s30 (1)(a))
The Children's Guardian cancelled the applicant's working with children check clearance because of his sexual interest in prepubescent children. In making this finding, the Children's Guardian accepted that the allegations pertaining to the applicant's daughter were not substantiated and that no immediate risks were identified by FACS. The Children's Guardian also accepted that the applicant does not have a criminal record, that there were no prior complaints made about the applicant during his twenty-year history of working with children and that he had previously held a working with children check clearance, without incident, for a period of five years. The Children's Guardian accepted that the applicant had provided cogent information to establish that the level of risk associated with his diagnosis is currently being mitigated.
[9]
The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))
Concerns were raised in relation to the applicant's daughter in 2017. The concerns were found to be unsubstantiated by FACS and the applicant has not come to adverse attention since then.
[10]
The age of the person at the time the matters occurred (s30(1)(c))
The applicant was 34 years old when he was diagnosed with paedophilic disorder and when a notification to FACS was made by the applicant's treating psychiatrist.
[11]
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 (s30(1)(d))
Concerns, later found by FACS to be unsubstantiated, were expressed for the applicant's then ten-year-old daughter who was vulnerable because of her age and because she was under the applicant's authority.
[12]
The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))
The applicant is 24 years older than his daughter.
[13]
Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))
The applicant knew his daughter was a child when the concerns, later unsubstantiated, were notified to FACS in 2018.
[14]
The person's present age (s30(1)(g))
The applicant is 36 years old.
[15]
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))
The applicant has no criminal record. In the twenty years he has been involved in child-related work, no complaints have been made against him.
[16]
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))
The conduct of concern, namely that the applicant may have sexually abused his daughter, was found by FACS to be unsubstantiated.
For this reason, and those reasons set out above, we are not satisfied that the conduct of concern ever occurred.
[17]
Any order of a court or tribunal that is in force in relation to the person (s30(1)(il)
There are no orders in force in relation to the applicant.
[18]
Information given by the applicant in, or in relation to, the application (s30(1)(j))
In his assessment as a pre-service teacher, the applicant's skill was lauded and his expertise described as follows:
An area of strength that [DWD] demonstrated was managing challenging behaviours and the use of positive reinforcement. These behaviour management skills gained in [DWD's] previous employment has been a positive contribution to his placement.
Later assessment of his teaching skills described the applicant as 'creating 'safe and challenging environments and us[ing] a range of strategies to ensure children's wellbeing' and the belief of his assessors that [DWD] will be an invaluable asset to the teaching community.'
A reference by a colleague of the applicant describes him as a 'highly motivated individual who has strong family values.' The referee does not state an awareness as to why the applicant's working with children check clearance was cancelled.
A second reference by a colleague describes him as 'having a caring and kind nature and that is amplified when dealing with children.
[19]
Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(jl)
No further information has been provided.
[20]
Any other matters that the Children's Guardian considers necessary (s30(1)(k))
Any matters put forward by the Children's Guardian have been considered above.
[21]
Conclusion on section 30(1) matters
The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children?
For the following reasons, as considered above, we are not satisfied that the applicant poses a current risk to the safety of children.
1. Despite his diagnosis of paedophilic disorder, we are not satisfied that the applicant has ever engaged in offending behaviour against children. We are fortified in this conclusion by the fact that:
1. following an investigation into the applicant's family, FACS caseworkers found the concern that the applicant may have sexually abused his older daughter to be unsubstantiated;
2. despite an employment history of child-related work spanning twenty years, there have been no complaints against the applicant;
3. the applicant has no criminal record;
4. The applicant, who we found to be a credible witness, gave sworn evidence that he had never engaged in offending behaviour against children.
1. On the evidence before us, we are satisfied that the applicant was motivated to seek psychiatric treatment to address his involuntary and unwanted sexual feelings for children. We are satisfied that the applicant acted responsibly and with his family's support to seek the appropriate treatment for his disorder, treatment which according to both psychiatrists who gave evidence before us, has successfully managed the applicant's condition such that he no longer has sexual urges or fantasies about children. On the evidence before us, we are satisfied that the applicant is strongly motivated to continue this treatment.
2. The applicant has protective factors against any offending behaviour, which include his ongoing marriage and his strong family supports.
[22]
Section 30(1A) considerations
Section 30 (1A) of the Child Protection (Working with Children) Act 2012 prohibits the Tribunal from making an order allowing a person to work with children unless satisfied that:
1. a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in child-related work, and
2. it is in the public interest to make such an order
[23]
Would a reasonable person allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in child-related work?
The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires:
the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.
In order to properly consider whether a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in child-related work, a "reasonable person" would need to know that:
1. the applicant has a diagnosis of paedophilic disorder (which he accepts);
2. sexual urges he has had in relation to children have ceased with the anti-testosterone medication he has been taking since 2017;
3. although his psychiatrist made a notification to FACS in relation to concerns that the applicant may have sexually abused his daughter, these concerns were found to be unsubstantiated;
4. the applicant gave credible evidence denying ever having engaged in offending behaviour against children;
5. both psychiatrists before the Tribunal expressed the view that the applicant's paedophilic disorder was being adequately and appropriately managed;
6. the applicant's marriage and family supports are protective factors against any offending behaviour;
7. when asked what other strategies apart from the medication regime that the applicant could put into place to avoid stimuli giving rise to his paedophilic urges, Dr Allnutt replied 'the only way to avoid that is to avoid children.' He said that other strategies would include avoiding unsupervised access to children, avoiding stimuli from the internet and avoiding alcohol, so as not to risk becoming intoxicated around children.
8. a working with children check clearance cannot be made subject to any conditions, including that the applicant continue to take his testosterone-lowering medication or that any contact the applicant has with children be supervised.
We are satisfied that the reasonable person would be concerned by the fact that paedophilic disorder is a lifelong condition that requires lifelong medication for the applicant and that a clearance allowing him to engage in child-related work that was not directly supervised by another person cannot be conditional upon the continuation of the medication regime. Knowing the importance of anti-testosterone medication in managing his paedophilic disorder, the reasonable person would be reluctant to allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, if there was a possibly that the applicant might not be medicated.
The reasonable person would also be concerned by Dr Allnutt's opinion that apart from taking testosterone-lowering medication, the only way for the applicant to avoid stimuli giving rise to his paedophilic urges would be to avoid children. The reasonable person would accept that this would be difficult for the applicant to do within his own household and would note the relevant strategies that had earlier been put into place in the applicant's own household. The reasonable person would, however, accept he or she would not be in a position to impose similar strategies to avoid any stimuli giving rise to the applicant's paedophilic urges and would, for this reason, be reluctant to allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work.
Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work.
[24]
Is it in the public interest to make an order allowing the applicant to work with children?
We have determined that a reasonable person with knowledge of this information would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work and must therefore affirm the decision of the Children's Guardian to cancel the applicant's working with children check clearance. For this reason, we have not considered whether it would be in the public interest to make an order enabling the applicant to work with children.
[25]
Child-related work
In written submissions to the Tribunal, Counsel for the Children's Guardian considered the scope of 'child-related work' as it is defined in s6 of the Child Protection (Working with Children) Act, which provides as follows:
(1) A worker is engaged in child-related work for the purposes of this Act if:
(a) the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work, or
(b) the worker is engaged in work in a child-related role referred to in subsection (3).
(3) The following roles are referred to:
(a) an approved provider or manager of an education and care service,
(b) a nominated supervisor (within the meaning of the Children (Education and Care Services) National Law (NSW) of an education and care service,
(c) an authorised carer,
(d) an assessment officer (within the meaning of section 27A of the Children and Young Persons (Care and Protection) Act 1998),
Current version for 27 May 2019 to date (accessed 30 May 2019 at 13:00) Page 10 of 59
Child Protection (Working with Children) Act 2012 No 51 [NSW]
(e) the principal officer of a designated agency, (f) the principal officer of an accredited adoption service provider, (g) any other role with respect to children prescribed by the regulations.
(3A) The regulations may provide for circumstances in which direct contact by a worker with a child or children is taken to be a usual part of and more than incidental to a worker's work.
(4) In this section direct contact with children means: (a) physical contact, or (b) face to face contact
We note the advice by Counsel for the Children's Guardian that while teaching children is 'direct contact' as defined in s6(4) of the Child Protection (Working with Children) Act, the applicant would nevertheless be permitted to continue to provide onsite supervision and training to his adult employees.
Accordingly, the applicant would not be prohibited from onsite involvement with either of his businesses. Indeed, it is the advice of Counsel for the Children's Guardian that the applicant is permitted to manage his businesses onsite providing he does not engage in child-related work.
[26]
Decision
For the reasons set out above, we are satisfied that the applicant does not pose a real and appreciable risk to children. We have, however, decided that a reasonable person would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work. On this basis, the decision of the Children's Guardian to cancel the applicant's working with children check clearance must be affirmed.
[27]
Orders
1. The decision of the Children's Guardian dated 18 April 2018 to cancel the applicant's working with children check clearance is affirmed.
[28]
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 December 2019
Does the applicant pose a real and appreciable risk to the safety of children?
To engage in child-related work in NSW, a person must hold a working with children check clearance. The Children's Guardian, who has the power to grant a working with children check clearance, must cancel the clearance if satisfied that the holder poses a risk to the safety of children. (s23 of the Child Protection (Working with Children) Act 2012)
To determine whether a person poses a risk to the safety of children, the Children's Guardian may conduct a risk assessment for that person. (s15(1) & s15(3) of the Child Protection (Working with Children) Act 2012)
An applicant who is subject to a risk assessment must be granted a clearance unless the Children's Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children. (s5B and s18 of the Child Protection (Working with Children) Act 2012)
In conducting a risk assessment for the applicant, the Children's Guardian took into consideration the applicant's diagnosis of paedophilic disorder and his psychiatrist's notification that there may be reasonable grounds to suspect the applicant had sexually abused his daughter.
Following the risk assessment, the Children's Guardian found the applicant to pose a real and appreciable risk to the safety of children and cancelled his working with children check clearance.
In considering the applicant's application for review of this decision, the Tribunal's role is to determine the correct and preferable decision having regard to the material then before it, including material which may not have been before the Children's Guardian: (s63 Administrative Decisions Review Act 1997 (NSW)
This includes considering any allegations made against the applicant, which we should determine in the following way:
1. whether we can be satisfied that the allegation against an applicant is established;
2. whether we can be satisfied that the relevant incident did not occur, i.e. that the allegation is groundless.
3. whether, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, we may not be satisfied that an allegation has been made out, but may nevertheless have a lingering doubt or suspicion about it. In this case, we should consider whether the circumstances surrounding a particular incident, or course of conduct, means that the existence of a risk has not been disproven. (M v M (1988) 166 CLR 69; Children's Guardian v CKF [2017] NSWSC 893 at [55]; BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]; Children's Guardian v CXZ [2019] NSWSC 1083; [1988] HCA 68; DAR v Children's Guardian [2018] NSWSC 942; Office of the Children's Guardian v CFW [2016] NSWCA 1406)
According to Walton J in Children's Guardian v CXZ [2019] NSWSC 1083, the Tribunal is required to assess all allegations raised by the Children's Guardian. Citing with approval the consideration of risk as discussed by Harrison J in Office of the Children's Guardian [2018] NSWSC 942, Walton J found that the test as to risk only emerged, in the case of an allegation of wrongdoing, if an allegation is found not to be proven and could not be dismissed as groundless.
In determining whether the applicant poses a real and appreciable risk to the safety of children, we have considered those matters raised by the Children's Guardian in cancelling the applicant's working with children check clearance, namely:
1. the applicant's diagnosis of paedophilic disorder, for which he has been receiving psychiatric treatment; and
2. the notification to FACS by the applicant's psychiatrist that there may be reasonable grounds to suspect that the applicant may have sexually abused his ten-year-old daughter.
We have also considered the expert evidence before us in addition to the applicant's oral and written evidence.
We have then considered these matters in the context of those topics we are obliged to take into consideration, as set out in s30(1) of the Child Protection (Working with Children) Act.