FHV v Children's Guardian [2023] NSWCATAD 246 | Case summary

FHV v Children's Guardian [2023] NSWCATAD 246 | Case summary | Zoe

[11]

Relevant law

As provided by Part 4 of the WWC Act, the jurisdiction of the Tribunal is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61] (Young JA).
The objects of the WWC Act are set out in s 3 as follows: 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 of the WWC Act sets out the paramount consideration in the Act's operation as being for the 'safety, welfare and well-being of children and, in particular, protecting them from child abuse'.
Section 5(1) of the WWC Act defines 'children' as 'persons under the age of 18 years' and 'conviction' as 'include[ing] a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction'.
Sections 6 and 7 set out the circumstances in which a worker is engaged in 'child-related work'. These circumstances are broadly described, and section 8 prohibits a person from engaging in 'child-related work' unless the person is the holder of a clearance or has an application for a clearance pending determination by the Children's Guardian. Section 9 contains a similar prohibition on employing a person in 'child-related work'.
A clearance cannot be granted subject to conditions. Hence, once granted, a clearance allows the holder of the clearance to engage in any 'child-related work'.
Section 18(1) of the WWC Act prohibits the Children's Guardian from granting a clearance to persons who have been convicted as adults of certain offences specified in Sch 2 of the Act. Such persons are referred to 'disqualified persons' and the offences specified in Sch 2 are described as 'disqualifying offences'.
Section 28 of the Act provides that a 'disqualified person' who has been refused a clearance because they are a 'disqualified person' may apply to the Tribunal for an 'enabling order'. An 'enabling order' declares that the person is not to be treated as a 'disqualified person' for the purposes of the WWC Act in respect of the offence which made him or her a 'disqualified person'. An 'enabling order' cannot be made subject to conditions: WWC Act s 28(8).
An applicant must fully disclose all matters relevant to the application on an application to the Tribunal for an 'enabling order': WWC Act s 28(5).
If the Tribunal makes an enabling order, it may order the Children's Guardian to grant the person a clearance: WWC Act s 28(6).

[12]

Assessment of risk

Under s 28(7) of the WWC Act, the applicant is presumed to pose a 'risk to the safety of children' unless proved otherwise on the application before the Tribunal.
Section 5B of the WWC Act provides that '[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'. Hence, an assessment of risk requires the Tribunal to determine 'whether, in all the circumstances, there is a real and appreciable risk that is greater than the risk of any adult preying on the child' as opposed to a 'fanciful or theoretical risk': Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42]; BKE v Children's Guardian [2015] NSWSC 523.
In assessing risk, the Tribunal is required to consider the matters set out s 30 of the WWC Act which provides: 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 criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary.
Further, under s 30(1A) of the WWC Act, the Tribunal may not make an order which enables a person to work with children unless also satisfied that: (a) 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 (b) it is in the public interest to make the order.

[15]

The material before the Tribunal

The applicant provided the following material: 1. An affidavit sworn by him on 22 July 2022; 2. An expert report, dated 6 September 2022, of Dr J F O'Dea, Forensic Psychiatrist; and 3. Written submissions dated 14 October 2022.
The Children's Guardian provided the following material: 1. A bundle of documents provided on 4 May 2022 which contained a copy of the applicant's criminal record, the Police Fact Sheet regarding the applicant's disqualifying offence and some of his other offending, a report dated 16 June 2018 of Clinical Psychologist Sam Borenstein, a pre-sentence report dated 7 September 2018 and references the applicant tendered into evidence in his criminal proceedings; 2. A further bundle of documents provided on 28 September 2022. This bundle of documents contained a copy of the material produced under summons by Mr John McGee (Clinical Psychologist), a copy of the material provided by the Local Court and the District Court, and a copy of the material provided by the applicant; and 3. Written submissions dated 29 September 2022.
At the hearing of the applicant's application, the applicant and Dr O'Dea each gave oral evidence and were cross-examined by counsel for the respondent.
At the conclusion of hearing the oral evidence, counsel for the applicant made an adjournment application so that the applicant could engage in treatment of the kind suggested by Dr O'Dea in his assessment report of the applicant. Counsel for the Children's Guardian opposed the application as the applicant had ample time to engage in such treatment and any adjournment would be a lengthy one. In this regard, counsel for the Children's Guardian contended that if an adjournment were to be granted the Tribunal could find itself in the position of effectively monitoring the progress of the applicant's treatment, which was not its role. Whereas, it was open to the applicant to engage in the recommended treatment at any time. After hearing from the parties, we refused the adjournment application as the parties had indicated at the commencement of the proceedings the matter was ready to proceed and be heard, the adjournment application was made at the conclusion of the hearing of the evidence, when the applicant had every opportunity to make the application after he had received the report of Dr O'Dea, and there was no assessment before the Tribunal as to the length of treatment the applicant may require.

[16]

The applicant's evidence

In his affidavit filed in this application the applicant said: 1. He understood the seriousness and severity of the offences he committed; 2. He did not want to cause harm to anyone again like he did with the offences he committed. Nor did he want put his family through what he had done in the past; 3. His psychologist, John McGee, had taught him about cognitive behavioural strategies, including the 'ABC Analysis'. He said he had created his own 'thought diary' which he used to write down any negative thoughts he had and to which he applied the 'ABC Analysis'; 4. He is now comfortable with telling people how he feels. He also knows that if he is faced with a stressful situation or urges there are people out there who can help and assist him to ensure that he does not commit offences as he has in the past; 5. He would seek help immediately if he were ever in a stressful situation; 6. Since his offending, he has graduated from university, continued to play competitive sport and in 2022 secured a full-time position as a sporting Programs and Events Co-ordinator; 7. His offending was not targeted towards children. He is very regretful for what he has done in the past and he never wants to put any child's safety in danger; and 8. He wants to be able to once and for all leave his past behind him.
In his oral evidence in chief, the applicant said that he is currently in a relationship.
During cross-examination by counsel for the respondent, the applicant said: 1. On 17 February 2018 he had arrived at the sporting oval about an hour before he was due to play his sport. He was shown a map and agreed he had parked on the left hand side near the public toilets. He said he had decided to masturbate to kill time. He agreed that the passenger window was down. He said he did not initially seek to get the attention of a female pedestrian, but he did so subsequently on 22 February 2018; 2. On the afternoon of 22 February 2018, he had training which was due to start at 5.00pm. He went early and parked at the same spot. He agreed that he parked there to get noticed. He agreed that he saw Pedestrian B, the pram and a small boy. He said that having seen the children, this did not prompt him to stop masturbating; 3. He agreed that while he had said that his offending was not targeted at children, his offending on 22 February 2022 was committed in front of children. He agreed that the children might have been scared and that he had placed them in danger, but did not intend to do so; 4. He did not understand that his offending related to his pornography use, or that his treatment required him to address his pornography use; 5. He agreed that at his first appointment with John McGee (Clinical Psychologist) they discussed the 'ABC Analysis'. This strategy he agreed was to assist him in avoiding negative depressive thoughts. He agreed that during his second appointment with John McGee they also discussed health compromising behaviours. And at the fourth appointment with John McGee, on 10 July 2019, they discussed 'Relapse Prevention' if he was having thoughts of re-offending if the urges came back. In this regard, the applicant agreed they discussed the applicant wanting to 'watch pornography more than normal'. The applicant said John McGee had told him that abnormal use of pornography was a sign of depression, but at no time was he told he should stop masturbating or using pornography. He said he was using pornography at the time he was seeing John McGee and agreed that he was still using it at the time of the hearing; and 6. He agreed that at his fifth appointment with John McGee, on 25 September 2019. they discussed 'increased masturbation'. He said that in his discussions with John McGee the topic of pornography never came up in the context that his use of pornography may result in him reoffending. That is, he did not understand that ceasing to use pornography would stop him re-offending.
In re-examination, the applicant said that the 'Relapse Prevention' discussion with John McGee had been raised because, at that meeting, he had explained to John McGee that his offending had occurred while he was watching pornography. He said John McGee advised that use of pornography was a 'natural thing', but there was a place and time for it and what was discussed was that if he had an urge to view pornography in a public arena, he should use the 'ABC Analysis'. He concluded by saying that he believes he knows right from wrong.

[17]

The evidence of Dr O'Dea

Dr O'Dea interviewed the applicant in his rooms, on 15 August 2022. He was interviewed for two hours.
In his report of 6 September 2022, Dr O'Dea said that the applicant was engaging throughout the interview, and spoke at length regarding his predicament in a sensible, coherent and informative, and detailed, manner. He said that the applicant repeatedly expressed shame, remorse and contrition in relation to the charges.
In his report Dr O'Dea provided details of the applicant's family history, developmental history, forensic history (the offending conduct), psychosexual history and psychiatric and general medical history.
Regarding the applicant's forensic history, Dr O'Dea noted that the applicant had made the following remarks about his offending: 1. Concerning the charges generally: '… pornography was a big factor as a teenage boy … I used that to forget what was happening in real life … I guess I got used to being considered and important thing in the sporting world … when injuries interrupted [my sporting career] … that felt unimportant …' 2. Concerning the telephone calls: '… I don't remember how it started', 'I don't have an answer how it happened', 'of course porn was a factor as well … with the phone calls … the only connection was maybe watching the porn … but I wasn't watching porn of phone calls … I just looked at it being stupid more than anything …' 3. Concerning the exhibitionism: '…that obviously happened after the phone calls … pornography being quite relevant in my life … I was having discussions [about] testosterone levels with friends … the first [of the exhibitionistic charges] wasn't planned … and the second [of the exhibitionistic charges] was [came] from the first … I just had the thought [that I was ] not physically harming some one … I look back and think now , 'what an idiot' …'
Regarding the applicant's psychosexual history, Dr O'Dea said that the applicant had told him that he has been in a relationship with his current girlfriend since 2018. His girlfriend is a few years older than he is and that she had been with him 'through all of this'. Dr O'Dea noted that the applicant told him that he had commenced masturbating in his early high school years and started accessing internet pornography when he was 14 or 15 years of age. The applicant started by watching still images and as technology progressed, he began watching videos. He accessed pornography a couple of times a week initially and then at some point every day or even twice a day. The applicant said he only accessed adult pornography and denied having accessed sadomasochistic or coercive pornography.
As a result of the material with which he had been provided and his interview with the applicant, Dr O'Dea concluded by expressing the following opinion: 1. He did not diagnose the applicant as suffering from a psychotic or a major mood or anxiety disorder at the time he was interviewed. Nor in his opinion was he suffering from such a disorder or at the time of his offending (December 2015 to February 2018); 2. The applicant's repeated telephone calls with sexualised components to them, meets the psychiatric diagnostic category of 'Telephone Scatologia', a Paraphilic Disorder, as they were made to three separate females, over an extended period of at least two years; 3. The applicant's exhibitionistic behaviours on two occasions may not strictly meet the psychiatric diagnostic category for an Exhibitionistic Disorder because they occurred a few days apart. However, his conduct in relation to these offences would point to the potential for underlying exhibitionistic urges and/or fantasies fuelling these behaviours, at least at the time of these offences; 4. Whilst it would be reasonable to consider that the applicant's reported problems with injuries, and subsequent difficulties in his progression in his chosen sporting career from 2015 to 2017, were likely to have resulted in anxiety and depression, and may have potentially contributed to his sexual offending. However, the applicant's reported internet pornography use from his mid teenage years 'is likely to have been a significant contributing factor to his behaviour in relation to the sexual offences'; 5. It is increasingly recognised in clinical settings, the ready access to, and focus on, internet pornography by males through their formative psychosexual years, can and does have significant and often negative, impact on their developing sexuality; and 6. The risk of younger adult males engaging in further exhibitionistic behaviours and /or telephone scatologia towards adult females would be considered significant, from a clinical psychiatric risk assessment and risk management perspective. However, as judged by actuarial risk assessment tools such as the Static 99R; exhibitionism in particular, can and does respond to ongoing treatment, with telephone scatologia likely to do so as well. Such treatment in the applicant's case would be psychologically or psychotherapeutically based treatment in the first instance, with a suitably qualified and experienced forensic psychiatrist or psychologist, utilising a cognitive behavioural therapeutic (CBT) approach, with central ongoing aims of total abstinence from pornography access and focus on social and sexual skills in real life heterosexual relationships.
In his oral evidence Dr O'Dea re-iterated the opinions set out in his report and added the following: 1. He has seen extensive use of pornography in paraphilic behaviours. However, he does not say that pornography causes such behaviours - but it is a significant factor from what he has seen; 2. Exhibitionistic behaviours do have a significant risk of further offending, but is treatable; 3. The applicant needs to be 'engaged' in treatment; 4. It is not good enough for the applicant to put his hand up for treatment when a problem arises; and 5. The nature of the applicant's ongoing treatment may vary, but it should be ongoing. Controlled pornography is difficult to achieve where there has been offending. Hence, the treatment goal would be abstinence from any access to pornography.

[27]

The likelihood of any repetition by the applicant of the offences or conduct and the impact on children of any such repetition (s 30(1)(i))

The applicant submits that repetition of his offending is unlikely because: 1. He has acknowledged his offending; 2. He has insight into his offending; 3. He has undergone treatment and recognises when and how to seek intervention should the need arise. In the event the need for intervention were to be required, it would be successful and prevent any risk arising to children; and 4. His offending represents a discrete phase of his life, as a young immature adult.
The Children's Guardian submits, based on the report of Dr O'Dea and the evidence of the applicant, that the Tribunal could not be satisfied that there is no likelihood of the applicant committing further offences of the kind he pleaded guilty to. In this regard it was submitted: 1. There is no evidence to indicate that the applicant has any appreciation of the causes of his offending. Instead, he thinks it was caused by depression, including 'negative thoughts' and 'stressful situations'; 2. As identified by Dr O'Dea, pornography is the underlying cause of the applicant's offending, which also impacts on the applicant's social and sexual skills in real life; 3. Dr O'Dea considers there is a significant risk of further exhibitionistic behaviours and/or telephone scatologia, which is a risk, but also a risk that would respond to ongoing treatment. That treatment involving cognitive behavioural therapy with a focus on total abstinence from pornography; and 4. The absence of the applicant having received treatment of the kind suggested by Dr O'Dea.
The Children's Guardian also submitted that while the applicant's offending was targeted at adult women, his offending nevertheless remained a real and appreciable risk to the safety of children, because children could witness the behaviours if it occurs again. In this regard, the Children's Guardian noted that the applicant's exhibitionistic offending occurred in broad daylight in a public place frequented by pedestrians which could include children.
We note that in his report of 16 June 2018, Sam Borenstein, Clinical Psychologist, said that he was of the opinion that the applicant's offences of indecency and offensive behaviour did not warrant the diagnosis of exhibitionism as they had not been recurrent for a period of at least six months. He did however, describe the stalk/intimidate offending by the applicant as telephone scatologia.
The report of Sam Borenstein was prepared for the applicant in support of his application, before the Local Court, that his offences be dealt with under s 32 of the then Mental Health (Forensic Provisions) Act 1990 (NSW)(repealed). An application of this kind could be made where the offender is, or was at the time of the offending, not mentally ill but was cognitively impaired, suffering from mental health, or suffering from a mental condition for which treatment is available in a mental health facility. If dealt with under this section, the Local Court could make an order dismissing the charge(s) laid against the offender and discharge the offender on the conditions such as, undergo specified treatment.
As noted above, the report of Sam Borenstein was based on the agreed facts that were before the Local Court, which did not include the applicant viewing pornography at the time of the indecency offence or the stalk/intimidate offence. Nor did it include the applicant masturbating during the stalk/intimidate offence.
In his report, Sam Borenstein said that the applicant told him that, since his arrest and being charged, he had not watched pornography: R2 p 45 (p 4 of the report). Later in his report, Sam Borenstein did note that the applicant had told him that he had attempted to manage his 'worsening depressions by pursuing pornography and seeking gratification and relief through masturbation': R2 at pp 8 and 9. Sam Borenstein went on to note that, in his opinion, the applicant was navigating a severe depressive episode during the offending period. He said the applicant's proper judgement was significantly impacted by virtue of his depression which 'he attempted to assuage via sexual gratification'.
As we have noted above, it is the evidence of Dr O'Dea that the applicant does not suffer from a depressive disorder today. And even if he was suffering a depressive disorder at the time of his offending, this was not the underlying cause of his offending. Instead, Dr O'Dea concluded that the offending was caused by the applicant's use of pornography, which he continues to use today.

[31]

Has the applicant rebutted the presumption that he poses a risk to the safety of children?

On the material before the Tribunal, having regard to the matters in s 30(1) of the WWC Act, we find that there are a number of factors in favour of the applicant. For example: 1. The applicant's offending was not targeted at children; 2. There is no evidence of any further offending by the applicant since 2018. Nor is there any evidence of the applicant having come to the attention of Police since 2018; 3. The applicant is older. He has finished his university studies and has secured employment in his chosen field; 4. The applicant has a supportive family; and 5. The applicant has been in a long relationship with his current girlfriend. The nature of that relationship, however, is unknown.
However, there are also a number of factors against the applicant. For example: 1. While the applicant's offending was not targeted towards children, the applicant was nevertheless indifferent to who witnessed his offending conduct. That is, his exhibitionistic behaviour could very easily have been seen by children as his offending occurred in public near a popular walkway which is open for use by everyone, including teenagers; 2. The applicant's lack of insight into the underlying cause of his offending conduct, which spans a period of three years - that cause being his extensive use of pornography in his paraphilic and exhibitionistic behaviours; 3. There being a significant risk of further offending, without any psychologically or psychotherapeutically based treatment with a central ongoing aim of total abstinence from pornography access and a focus on social and sexual skills in real life sexual relationships; and 4. The applicant's lack of engagement with relevant treatment.
In our view, in this application, having regard to the paramount consideration in s 4 of the WWC Act, the factors against the applicant outweigh those that are in favour of the applicant. Hence, we are not satisfied that the applicant has, at the time of hearing, discharged his onus in rebutting the presumption that he poses a risk to the safety of children by reason of his disqualifying offence.

FHV v Children's Guardian

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Judgment (34 paragraphs)

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Legislation Cited (7)

Cases Cited (10)