ELE v Children's Guardian

NCAT Administrative and Equal Opportunity|2021-03-17|Before: Prof P

Issues for decision

This is an application for an enabling order under the Child Protection (Working with Children) Act 2012 (the CPWWC Act).
The applicant applied for a working with children clearance. The clearance was refused because he was a disqualified person on the basis of his conviction in 2003 under s 76 of the Crimes Act 1900 of seven counts of assaulting a female under 16 years of age. and committing an act of indecency between 1973 and 1975.
Another 2 counts of the same offence were withdrawn and dismissed and one was not proceeded with.
The applicant is retired but seeks the clearance in order to perform voluntary work with his church.

Relevant legislation

The object of the CPWC Act is in s 3 which provides: "3 Object of Act The object of this Act is to protect children - (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
Section 4 provides: "4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
Section 5B provides: "5B Meaning of "risk to the safety of children" A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children."

Evidence

The applicant relied upon the following material: 1. Statement of evidence of ELE dated 6 November 2020 2. Report of Professor Stephen James Woods dated 8 January 2021 3. Statements of three of the applicant's children 4. Statement of the applicant's wife 5. Statements of two son-in-laws of the applicant 6. 4 statements of friends of the applicant who have known the applicant for either 5, 21 or 57 years.
The respondent relied upon the following evidence: 1. Documents filed on 22 October 2020 2. Documents filed on 3 December 2020 3. Section 31 response from the Department of Communities and Justice dated 27 October 2020.
As provided in s 28, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

The disqualifying offences

The applicant pleaded guilty to and was convicted of seven counts of assaulting and committing an act of indecency on a female under 16 years of age, contrary to s 76 of the Crimes Act 1900, between 1 May 1973 and 1 July 1975.
The applicant has no other criminal offences on his record and has never been subject to the terms of an apprehended domestic violence order. There was however another allegation made against him which was not proceeded with. This is dealt with below.
ELE was born on 16 March 1949 and is currently 72 years of age. He has never worked with children. He has been a member of the Church of Jesus Christ of Latter Day Saints since he was a teenager. He told the Tribunal that he was asked to accept a volunteer position within the Church which required a working with children clearance. That position is no longer available but he wishes to have the clearance in the event that he is asked to take on another volunteer role within the Church.
ELE left school to take on an apprenticeship in 1965. He undertook mission work for the Church in New Zealand between 1970 and 1972. In February 1973 he was married. He worked for 30 years as a fitter in various industries. In about 1989 he suffered a severe injury to his right leg which resulted in a mid-calf amputation of that leg. Subsequently he undertook part time and casual work and volunteered with his Church.

The respondent's case

The respondent relied on police and court records.

Victim 1

In a statement to police dated 1 March 2003, the victim in the offences of which the applicant was convicted stated that her older sister married ELE and when she was between 13 and 14 years old, ELE and his wife would stay at the victim's parents' house at weekends. The victim would sleep on the lounge during these visits. She said on one occasion she was sleeping on the lounge and woke up because someone was touching her vagina. She said it was ELE who had his hands inside her underpants.
After this she said that just about every time ELE stayed at the house he would touch her. He would wake her in the middle of the night and he would touch and rub her vagina on the inside of her underpants. On one occasion he put his finger inside her vagina. He would also touch and rub her nipples. This went on for about 12 months. On the last occasion it happened she said he made her touch him through the outside of his pants. She tried to walk away. He grabbed her hand and put it on his penis outside his clothing. She said his penis was erect.

Victim 2

Victim 2's sister also made a statement to police. She alleged that when she was 12 years of age in 1975 ELE knocked on the door and came into her bedroom. She said ELE approached her from behind, placed his hands on her shoulders and put his hands under her top and fondled her breasts. She said he grabbed and fondled her nipples in a pinching manner and moaned. She was frightened and could not move or speak although it hurt. She felt his erection through his clothing although she only realised what this was when reflecting on it later. She said that ELE then said "I'm sorry. I don't know what came over me. Can you ever forgive me?"
She said that on another occasion in 1976 when she was staying at ELE and his wife's house, ELE came up behind her and put his hands on her shoulders. She became upset and ran out of the room. ELE came after her and said "Look, I know I'm a heel". She ran away from the home, got a train home and tried to tell her parents what had happened. She said they did not believe her. She said that she later told her sister what had happened. Her sister then told her about her experiences. Victim 2 said that ELE told her later that he had been sexually abused when he was a child.
In her statement Victim 2 said that from the age of fourteen years she suffered depression and she had attempted to take her own life. She is now deceased.

The criminal prosecution

The police statements of Victims 1 and 2 were made in 2003. The applicant was arrested and charged on 8 July 2003. The applicant was interviewed by police and made admissions. He also informed the police that he had confessed his actions to an elder of his church at the time and to his wife. The church had not reported the matter to the police.
The applicant was charged with offences relating to Victim 1 and Victim 2. He made full admissions of the conduct during his police interview. It is understood that the charge concerning Victim 2 was not proceeded with as the Court records state. The applicant was not sentenced but was given a 2 year good behaviour bond.

The evidence of Professor Woods

Professor Woods is a Forensic Psychologist and is Adjunct Professor at the School of Law and Justice, Southern Cross University. He is a member of the NSW Mental Health Tribunal and has acted as a specialist forensic consultant both in Australia and overseas.
Professor Woods undertook a clinical forensic psychological assessment with particular regard to the probable level of future risk ELE might pose if granted a clearance to work with children under the CPWWC Act.
Among the documents considered by Professor Woods were the police facts sheet, COPs reports and narratives, criminal history report and court papers regarding the disqualifying offences.
He said that based on the information of the applicant, the offences occurred at a time when ELE had been told to abstain from sex with his wife because of her pregnancy. The offences appeared to be opportunistic and the applicant considered that Victim 1 was behaving flirtatiously.
Professor Woods considered that both the offences for which ELE was convicted and the alleged offence satisfied the definition of "Incest by Affiliation - Exclusive type". He noted that ELE vehemently denied the alleged offence against the younger complainant.
Professor Woods questioned ELE regarding the ability of children and teenagers to know what was inappropriate sexual activity and to give consent to sexual activity. He reported that ELE said that children are not baptised until the age of 8 years on the basis that a child of 8 years is able to make an informed decision. He also reported that ELE said that a child of 8 years "is able to recognise right from wrong and as such able to give informed consent."
He said that ELE reaffirmed this belief when questioned and also stated that the age of consent should be lowered to 14 years. He said that he continued to believe that the victim in the offence for which he was convicted was a consenting participant, behaved in a flirtatious manner prior to the offences, but also hated himself for what he had done. Notwithstanding this he said that he would adhere to Church policy which required all members to be alert to and to report any signs of child abuse.
ELE disclosed to Professor Woods that he had been the victim of sexual assault on about three occasions by two older male perpetrators when between 11 and 13 years of age. He described himself as a devoted member of the Church and joined the Church after attending youth groups. He met his now wife while undertaking missionary work and they became engaged on the third date. His wife was his first sexual partner. The couple have seven children.
Professor Woods' assessment of ELE did not reveal any signs of clinically abnormal psychopathology. He did not undertake the standard sex offender risk inventories as because of his age, the time that had elapsed since the offences, absence of criminal history, other sexual deviations and stable relationship, they would automatically yield a low risk rating. He undertook a structured clinical interview. He considered that the following factors were relevant to risk: 1. At the time of the offences, ELE was 25 years of age, at which age males have not generally fully developed executive functioning. 2. There were no other offences between 1975 and the time of conviction for the offences in 2003, and no offending or allegations from 2003 to the present. 3. His offending was exclusive to family members. 4. While the offending behaviour escalated in nature he voluntarily ceased and acknowledged his behaviour to his wife and the Church, reflecting a level of emotional regulation. 5. His offending behaviour was likely a symptom of poor behavioural control during a period when he and his wife abstained from sexual intercourse. The subsequent absence of any form of offending for some 45 years suggested a high level of behavioural control likely related to increased maturity. 6. ELE reportedly continued to experience a great deal of guilt and remorse over his offending behaviour. 7. ELE was at the time of the report 71 years of age and had been unable to maintain an erection for 20 years. He reported to have no libidinal drive. He had limited mobility due to the amputation of his lower right leg. These were protective factors. 8. ELE's beliefs about the ability of children to make an informed decision about sexual conduct. Professor Wood saw these as cognitive distortions.
He concluded that ELE satisfied the diagnostic criteria of Paraphilic disorder or alternative Hebephiliac disorder, now in full remission. He presented a low risk of re-offending. The only identified risk factor was his cognitive distortion regarding the age at which informed consent could occur, which was balanced by his commitment to the doctrine and policy of his Church.

ELE's evidence

ELE said that in order to serve in his church as a lay member he needs a working with children check, even if the role does not involve working with children. He wished to be able to accept if he was called to serve the church in future.
He had turned 72 the day before the hearing. He had seven children and 12 grandchildren. He said the Church had been a large part of his life since joining when he was 14 years old.
In relation to Victim 1, he said he had reported his conduct to his wife and to the Church shortly afterwards. He said that he remembered the first incident with Victim 1 differently. He said that she was sitting on a lounge and she asked him to rub his back, and "it went on from there". He denied ever waking her up at night or inserting a finger in her vagina. He alleged that on 2 occasions she exposed her breast. His wife and mother in law were present on one occasion and they told her to leave the room and get dressed.
He thought that she was inviting sexual contact and experimenting with her sexuality. He agreed that even if this were the case, it did not excuse his actions. He said "I was the adult, I should have known better." Even if she was consenting, he knew she was under age and should not have done what he did.
In relation to Victim 2, he denied having any sexual contact and denied the incidents she described to police.
It was pointed out to him in cross examination that this contradicted his ERISP interview with police. In the police interview he said: 1. his hand touched her just above her breast and that she pushed his hand away from which he understood that "she didn't want to do anything" and he then left the room. 2. false reports had been made to the church about his conduct towards Victim 2 3. He was not sure when this occurred but agreed it could have been around Christmas of 1975 4. He could have said "I'm sorry, I don't' know what came over me, can you ever forgive me."
He did not admit the remainder of the details alleged by Victim 2. At the time of the alleged conduct, Victim 2 was 12 years old.
At the hearing ELE provided a different version of events. He said that he had failed to mention that there was another child in the room at the time and he was reaching across to pick up the baby. Touching Victim 2 was inadvertent, not deliberate. He agreed that she pushed his hand away, however. He could not explain why he had told the police something different.
The incident he described has elements in common with an incident with Victim 1 described in the Facts sheet which states : "Between July and August, 1974 the victim was in the sunroom of the house changing the nappy of the defendant's newborn child. The defendant approached the victim from behind, reached under the victim's arms and touched her on the breasts with both hands. The defendant has fondled the victim's breasts for about 5 minutes on the outside of her clothing." In the facts sheet the incident involving Victim 2 is stated to have occurred between November 1975 and February 1976.
He was asked under cross examination about his views on consent. He said that a child properly brought up has the capacity to know right from wrong and to know what is inappropriate touching, but they do not have the capacity to consent to sexual activity. He agreed that this was different from what Professor Woods had identified from his analysis, but said that he obviously did not clarify sufficiently what he meant. He did not mean to say that a child of 8 years old could consent to sexual activity, only that they should be able to tell their parents of any conduct they experienced which was wrong. Any parent should tell their child that a stranger touching them improperly is wrong. He agreed however that he believed that the age of consent should be lowered. He expressed the view that Victim 1 knew what she was doing. Children grow up faster now and are a lot more informed. Girls mature faster than boys and his view had germinated from his own experiences in 1974-5. He felt that a child of 14 can give consent to sexual activity. Notwithstanding this belief, he would report inappropriate sexual activity to or by a 14 year old.

Applicant's submissions

The applicant noted that the offences occurred 46 years ago. The applicant had no offences on his record either before or since. He has lived an exemplary life otherwise and is in a long term marital relationship. He has conducted voluntary service. Professor Wood's report indicated that his brain's executive functions were not fully matured at the time of the offences. He recognised immediately that his conduct was wrong and had pleaded guilty.
He admits the inherent seriousness of the offences. He was 24 years of age at the time.
It was agreed that there was some contradictory evidence in relation to his views but the Tribunal could be satisfied that there is no real or appreciable risk, based on the above matters, the evidence of his children, sons-in-law and friends. The applicant submitted that a reasonable person would allow the applicant to have direct contact with their child in circumstances which were not directly supervised.
The applicant submitted that given the long passage of time since the offences and the lack of any other criminal conduct, as well as the need to rehabilitate offenders, it would be in the public interest to issue a working with children clearance to the applicant.

Respondent's submissions

The Children's Guardian submitted that the level of risk was neutral, however the reasonable person test had not been met.
The Tribunal must first determine what the facts are which give rise to any risk and on which the test would be applied.
As the applicant is seeking an enabling order, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. On this subject, the respondent pointed to his contradictory evidence regarding Victim 2 as a cause for concern. It conceded however that there were a number of factors which strongly indicated that he did not pose a risk to children. These were his age, his infirmity, his absence of libido, his adherence to church doctrine, and his early remorse.
Secondly under s 30, the Tribunal must consider the matters set out in s 30(1). In addition, the Tribunal may not make an order enabling a person to work with children unless the Tribunal is 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 any child-related work, and 2. it is in the public interest to make the order.
The Children's Guardian submitted that there was a factual dispute as to what the applicant's views about consent actually were, which the Tribunal must resolve. Professor Woods received a very clear impression that the applicant held different views from those he now stated.
The applicant did not challenge him on this point but said that his views were not as expressed by Professor Woods.
As to whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant, the Tribunal should consider the nature of the offences and the allegations, the opinion of Professor Woods, and its findings as to what the applicant's view on consent was. The Children's Guardian took the view that the applicant did not meet the test in (a). The Tribunal must also consider the public interest.

Findings of fact

There were two factual issues in dispute during the proceedings.

Whether ELE committed the conduct against Victim 2 which he confessed to in 2003 but did not admit in these proceedings

In these proceedings ELE gave evidence that he had touched Victim 2 on the breast inadvertently while reaching for an infant in the same room. We note that ELE confessed in 2003 when interviewed by police: "I did enter her room. And she was sitting on the bed. I did put my hands on her shoulder, I did attempt to put my hand on her breast on top of her clothing, she pushed my hand away. … I realised that, she didn't want to do anything, I left the room. That's as far as it ever went."
It appears to us that he was clearly speaking about Victim 2 to police as he went on to say that she had a "fiery temper". He also told police that Victim 2 had made other allegations against him which were not true. We note that the charge in respect of Victim 2 was not proceeded with.
Victim 2's version of events was that the conduct by ELE was more deliberate and prolonged and went beyond mere touching.
In circumstances where the charge involving Victim 2 was not proceeded with but we have evidence from her and ELE dating from 2003, we find that it is more probable than not that ELE did engage in the conduct as he described it to police. We do not find his later denial credible. It is possible however that he was confusing this event with another event.

The nature of ELE's views on whether children under 16 could give consent to sexual activity.

Professor Woods expressed his view clearly and firmly that at the interviews he conducted, ELE said that a child of 8 is able to recognise right from wrong and give informed consent. He said that ELE repeated this view when challenged on it with regard to sexual contact, and added that the age of consent should be lowered to 14 years. He also stated that ELE believed that Victim 1 was a consenting participant. He said that ELE had a rather rigid thinking style with regard to a child's ability to make informed decisions regarding sexual behaviour.
ELE gave evidence that he did not believe that a child had the capacity to consent to sexual activity and attributed Professor Woods' evidence to a misunderstanding. He agreed however that he believed that the age of consent should be lowered to 14 years of age. He also expressed the view that Victim 1 knew what she was doing when the offences occurred. Notwithstanding this belief, he would report inappropriate sexual activity to or by a 14 year old.
We are not satisfied to the required standard that ELE has the belief that a child of 8 can consent to sexual activity. Other evidence does not support this belief and we consider it is possible that either he did not explain himself clearly or feel able to correct Professor Woods' understanding.

(a) the seriousness of the offences with respect to which the person is a disqualified person

The applicant was convicted in 2003 of an offence under s 76 of the Crimes Act 1900 of seven counts of assaulting a female under 16 years of age and committing an act of indecency between 1973 and 1975.
Section 76 (now repealed) was in the following form: "76 Indecent assault Whosoever assaults any female and, at the time of, or immediately before or after such assault, commits any act of indecency upon or in the presence of such female, shall be liable to imprisonment for four years, or, if the female be under the age of sixteen years, to penal servitude for six years." The seriousness of the offence and the severity of the potential sentence were compounded by the victim being under 16 years old.

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

The offences occurred between 1973 and 1975 which is over forty five years ago. The applicant has no other criminal record. He has led an active life in which he was fully employed until an unfortunate industrial accident in 1989 caused him to have to undergo an amputation on his lower right leg. After this he undertook part time and casual work as well as voluntary work. He has been and remains involved in his church. He is currently receiving a pension. The evidence indicates that he is fully engaged in his family life and that his family members love and respect him.

The applicant was born in 1949 and therefore at the time of the offences he was between 24 and 26 years of age.

(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

Victim 1 was between 13 and 14 years of age
Victim 2 was 12 years old.

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person

Although the applicant was in his early to mid twenties, Victim 1 and Victim 2 were much younger. Victim 1 was in her early teens whereas Victim 2 had not reached her teenage years. The victims were related to him by marriage.

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

The applicant knew the victims as they were related to his wife and they often stayed in the same house.

(g) the person's present age

The applicant is currently 72 years of age

(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred

The applicant has no other criminal history.

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

It is extremely unlikely in our view that the applicant would repeat the offences. The offences occurred when he was in his early to mid- twenties. He has no other convictions of any kind. He is now 72 years of age, has had one leg amputated below the knee, and has suffered the loss of his libido. We consider that there is little to no likelihood of the offences or conduct recurring.
While the risk of any repetition is minimal, were it to occur the impact on any child would be extremely serious.

(i1) any order of a court or tribunal that is in force in relation to the person

No orders are in force.

(j) any information given by the applicant in, or in relation to, the application

We have considered the evidence provided by the applicant above and we have also considered the statements given by his children, wife, sons-in-law and friends. They testify to his honesty, good character, devotion to his family, and willingness to assist others. Some stated that they were aware of the offences and the difficulty this caused for ELE's family when he was charged, also ELE's regret and willingness to take responsibility for his actions. His daughters stated that he frequently sees and is actively involved in the lives of his grandchildren.

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A

This is not applicable.

(k) any other matters that the Children's Guardian considers necessary.

We have considered the Children's Guardian's submissions.

Consideration

It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children (s 28(7)). The standard of proof applied is the civil standard, that is, on the balance of probabilities: see BKE v Office of the Children's Guardian [2015] NSWSC 523 per Beech-Jones J at [33]. 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].
The Tribunal may not make an order which has the effect of enabling a person to work with children in accordance unless the Tribunal is 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 any child-related work, and 2. it is in the public interest to make the order.
Whether it is in the public interest to make an order enabling a particular applicant to work with children will depend upon all the relevant facts of which the Tribunal is aware (CHB v Children's Guardian [2016] NSWCATAD 214).
The Tribunal must consider the public interest in the context of s 4 of the CPWWC Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration. There is no definition of "child abuse" in the Act. There is a definition in s 227 of the Children and Young Persons Care and Protection Act 1998: "(a) the physical injury or sexual abuse of a child or young person, or (b) ….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…"
The public interest test requires the Tribunal, in the context of that paramount consideration, to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant (Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255; CYY v Children's Guardian (No 2) [2017] NSWCATAD 262). In ZZ v Secretary of the Department of Justice [2013] VSC 267 it was held by Justice Bell that the public interest test included consideration of factors such as the right of a person to engage in work.

Whether the applicant is a risk to the safety of children

We consider that the applicant does not present a real or appreciable risk to the safety of children given: 1. his age and circumstances at the time of the offences 2. his current advanced age 3. his infirmity, having had had one leg amputated below the knee 4. his lack of any other convictions 5. the loss of his libido.

The "reasonable person" test

The next question for the Tribunal, then, is whether a reasonable person would allow his or her child to have unsupervised direct contact with the applicant while the applicant was engaged in any child-related work.
The case of CHB v Children's Guardian held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware.
The main issue is whether a reasonable person would allow that contact knowing the applicant held the belief that the age of consent should be lowered to 14 years and that Victim 1 had invited him to engage in sexual activity. These factors are relevant if they could indicate that ELE may not report or identify inappropriate conduct involving a child between 14 and 16. We note that ELE said he would follow the mandatory reporting guidelines of his Church at all times, and that his beliefs did not affect that. There is a difference however between adhering to a rule because you are told to, and having a deeply held belief. Professor Wood did not believe he would deviate from the Church's guidelines currently, but might do so if he suffered cognitive decline as he grew older.
Taking all the above matters into account, we consider that a reasonable person would have some concern about allowing ELE to have direct unsupervised contact with their child in child-related work, not because of a concern that he would engage in wrong conduct, but because he may not identify or report other hazards appropriately or promptly because of his beliefs.

The public interest

There is a public interest in ELE being able to perform voluntary work for his church and maintain social and work contact. On the other hand there is also a public interest in ensuring that children involved with the Church have the protection they require from inappropriate sexual conduct by having volunteers with the appropriate attitude.
In our view the evidence in favour of the applicant does not reach the threshold required for us to make an enabling order in this case.
Orders 1. The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 19 May 2021 - Paragraph 54 - Corrected omission in last sentence to "Professor Woods received a very clear impression that the applicant held different views from those he now stated." Paragraph 62 - Corrected the error of an extra blank paragraph. 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: 19 May 2021

Children and Young Persons Care and Protection Act 1998(NSW)

At a glance

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Judgment (34 paragraphs)

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Legislation Cited (3)

Cases Cited (6)