Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BFB -v- The Children's Guardian [2014] NSWCATAD 92 Decision date: 09 May 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane, Senior member Decision: 1. The Application is refused and dismissed. Catchwords: Working with Children - Enabling Application - Sexual abuse of 4 year old child 30 years ago - alcoholism and subsequent sexualised behaviour - Application refused Legislation Cited: Child Protection (Working with Children) Act 2012; Crimes Act, 1900 Category: Principal judgment Parties: BFB (Applicant ) The Children's Guardian (Respondent ) Representation: Counsel Ms P Lowson, (Respondent) BFB (Applicant in person) Crown Solicitors Office (Respondent) File Number(s): 1410071 Publication restriction: S64 Civil and Administrative Tribunal Act 2013 restriction against publication of information that will identify Applicant or victim(s) reasons for decision INTRODUCTION 1In 1983 the Applicant was caring for a 4 year old boy. The mother of the child was a neighbour. The Applicant was living alone and minded the child for the mother. He kissed and sucked the child's penis and had the child kiss his penis. 2The Applicant was convicted of the offence of "Commit an act of indecency with a boy under 16". Under the Child Protection (Working with Children) Act, 2012 ("the Act") that conviction renders the Applicant disqualified from obtaining a Working with Children Check Clearance from the Children's Guardian. Persons without such clearances are prohibited from working with children. 3In 1985 the Applicant became a father and from 1991 he was a step-father. On 17 June 1991 he obtained a custody order in his favour in respect of the step-son, "D", in undefended proceedings in the Kogarah Local Court. 4This is a hearing of his application for an enabling Order that would require the Children's Guardian to ignore the conviction for purposes of issuing a Working with Children Check Clearance. THE EVIDENCE 5The evidence in the proceedings comprises: 1) The Application 2) Supporting Submissions and other documents filed by the Applicant on 15 April 2014 3) Bundle of documents filed by the Respondent on 1 May 2014 (82 pages) 4) Further bundle of documents filed by the Respondent on 2 May 2014 being documents from the Department of Health, South Eastern Sydney Local Health District 5) Section 31 response from Meals on Wheels. RELEVANT PROVISIONS OF THE ACT 6Section 4 provides that: "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." 7Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 8Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 9Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 10Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 11Section 12 provides that there are two classes of Working With Children Check Clearances which are: a) Volunteer - authorising workers to engage in unpaid child-related work; and b) Non-volunteer - authorising workers to engage in paid and unpaid child-related work. 12Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 13Subsection 18(1) prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The Applicant was an adult at the time of the offence. 14In Schedule 2 to the Act, the offence for which he was convicted under the Crimes Act, 1900 is included in the specified offences that are disqualifying offences. 15Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the Applicant because of the offence in 1983. The Children's Guardian therefore refused to issue a Working with Children Check Clearance for the Applicant. 16Section 28 provides: (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 17Section 30 provides: (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Commission considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. (3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part. PRESUMPTION 18Section 7 contains a presumption that, unless the Applicant proves to the contrary, the Applicant poses a risk to the safety of children. ENABLING ORDER CANNOT BE SUBJECT TO CONDITIONS. 19It should be noted that ss.28(8) prohibits the making of a enabling order that is subject to conditions. DISCLOSURE 20Subsection 28(5) requires the Applicant to make full disclosure of any matters relevant to the Application. MATTERS UNDER SECTION 30 a) The seriousness of the offence with respect to which the Applicant is a disqualified person 21The offence was very serious. It involved the abuse of his role of caring for the child in the absence of the mother. The child was an infant and a vulnerable person. Sentence was suspended upon him entering into a bond in the sum of $500.00 with conditions that he be of good behaviour for 3years and accept the supervision of the Probation and Parole Service including attending pathological and psychological treatment. 22In relation to the offence, in cross-examination the Applicant said that he had not sought counselling in relation to that behaviour. When he was asked why he did it, he said that alcohol is disinhibiting and he has asked himself whether his conduct was behaviour that he really wanted to do. He said: "But no. It's not." 23The Applicant is an alcoholic. In cross-examination he says that he has a "not entirely clear recollection of the incident". He said he cannot remember whether he had counselling after the conviction. It was a condition of the bond that he attend counselling. He said he could recall that he reported to the Probation and Parole Service, but he cannot recall whether he attended any counselling through that service. b) The period of time since the offence and conduct of the Applicant since then. 24It is 31 years since the offence. In about 1987 the Applicant commenced living in a de facto marriage with a woman who had a child D. The woman died in March 1991 as a result of an accident in the home. D continued to reside with the Applicant until 2002, when he turned 18. He is now 30. On 7 June 1991 the Applicant obtained an order in the Kogarah Local Court for him to have custody of D. 25In cross-examination the attention of the Applicant was drawn to material from the Children's Court which included records of a disclosure by D that the Applicant when washing D in the shower would unnecessarily prolong the rubbing and soaping of D's genitals. When the Applicant was asked about this in cross-examination, he said it was the first time he had heard about the allegation when he saw the papers from the Children's Court. He was asked whether it had happened and he said: "We used to shower together and I may have done that". Then he said that it would not have happened more than once. He said he remembered D telling him he did not want the Applicant to do that. He denied that he did it for his own sexual purposes. "I was being playful. I stopped because he asked me to stop." He denied that he did rub and soap D's genitals for his own sexual gratification. 26In cross-examination he denied deliberately masturbating in D's presence, but then said: "He caught me once or twice". 27On Tuesday, 19 September 2006 the Police were called to the Applicant's unit because he had made statements that he was going to commit self harm. The Applicant said that he had just lost his job and was feeling down about unpaid bills and rent. He had been drinking. He said he had thought about ending his life, but then began thinking about all the things he had good reason to live for. The Applicant assured the Police that he would not commit any self-harm, but after they left, he contacted the Police Station and said he had cut his wrist. The Police returned and found that he had cut his left wrist. He had made 10 attempts and was bleeding. An ambulance was called and conveyed him to hospital. 28On Sunday, 16 September 2007, a 14 year old girl who was delivering newspapers in the Carlton area for her father, observed the Applicant standing naked on his balcony. He told her he wanted a Telegraph. She gave him a paper and he paid her. 29When he was cross examined about the incident, he said that he could not recall the incident and he does not know whether it is true. The incident was recorded in Police records. 30Police records show that on 5 May 2008, police officers saw him in the street at about 1am walking along the footpath intoxicated and naked. 31At about 5.30 pm on 16 September 2008 the Applicant attended St George Police Station. He was heavily intoxicated. He had had a fight with his housemate. 32There was an incident on 24 October 2008. He was at home and picked up a 6 cm blade kitchen knife from the kitchen drawer and began to cut both his wrists. This resulted in 5 to 6 "superficial lacerations". He had also consumed about 16 anti-convulsant tablets and about 20 paracetamol tablets in the hours leading up to this action. He told the Police that he had drunk 5 glasses of red wine with the tablets. The police took him to the St George Hospital and he was scheduled. When asked why he self-harmed, he replied: "I wanted to die." 33On 2 November 2008 police attended the Applicant's home. He met them at the door. He had been slashing his wrists with a knife. He had minor lacerations to his left wrist. The ambulance officers treated him and he was conveyed to the Mental Health Section of the St George Hospital. 34The Applicant's criminal record discloses that on 6 January 2009 he was convicted of wilful and obscene exposure in a public place on 3 November 2008. He was sentenced in the Kogarah Local Court to 5 months imprisonment with the sentence suspended upon him entering into a good behaviour bond, conditions of which was that accept the supervision of Probation and Parole for 5 months or as long as is considered necessary, obey all reasonable directions for counselling, educational development, and drug and alcohol rehabilitation. 35He spoke in cross examination of him in 2008 seeking treatment for his "compulsion to go around naked in public". He said he doesn't have that "compulsion" now and the reason is his "sobering up. Dealing with my state of life. Understanding the reasons for my depression". 36He also spoke in cross examination about speaking to his doctor about "excessive masturbation". He says he doesn't have the problem now but it "was an issue because it was physically hurting me." 37In cross-examination he denied that on occasions he masturbated in public. He conceded an incident which involved him walking naked in a car park at 1am. He denied having engaged in such conduct in the past. He conceded that he told the police that he would often walk the streets naked at night, but he said: "I was just trying to get attention." 38In cross-examination he was asked about an incident on 13 May 2009 when he was in a toilet cubicle with 2 other men in a public toilet at Kogarah. He said: "The door was closed". When asked what he was doing, he said: "I was actually going to the toilet. The other 2 were kissing. I wasn't engaged with them." He said that it was late at night but police records showed that it was 3pm in the afternoon. 39In January 2010 he cut himself with a knife and at the time said that he did it because of "sexual stresses". When asked about this, he said he was "sexually frustrated and very lonely". When asked what he meant by "sexual stresses", he said, "lack of sexual activity". He said the last sexual relationship he had prior to January 2010 was in 1986. Then he said: "All my sexual relations were with a woman". 40Police records show that on 7 December 2010 the Applicant contacted Lifeline and told them that he was going to end his life by shooting himself. Police attended and found him asleep on the lounge. He was taken by ambulance to St George Hospital and scheduled. 41At about 3.50pm on 21 December 2010 the Applicant had consumed about 4 litres of beer. He called Lifeline and said: "I'm going to shoot myself". The Police attended and he told them: "I want to kill myself by stabling myself or throwing myself under a train". Ambulance staff arrived and conveyed him to the St George Public Hospital. He was scheduled under the Mental Health Act. 42On 16 August 2011 at about 1.40am the Applicant was affected by alcohol and telephoned Lifeline. He told them: "I am going to stab myself". The Police attended. He told them: "I want to kill myself by stabbing myself or throwing myself under a train". An ambulance conveyed him to St George Hospital and he was scheduled under the Mental Health Act. 43On 23 October 2011 the Applicant telephone Lifeline and told the phone counsellor he had cut himself with a knife and did not want to live any more. An ambulance attended. The Applicant had an 8 cm cut to the inside of his left wrist. He was taken to St George Hospital for psychological assessment and admitted by the Mental Health Team. 44Health records show that he was treated on 7 November 2011 for self-harm. He had cut both wrists and the base of his penis. When asked, he said he had "No idea" why he cut his penis. 45For a while he had a flatmate Z who with her 8 year old son was living in his residence. It was put to him that he was self-harming "in front of her 8 year old son?". He replied, "They were out, but came home when I was in the bathroom cutting my wrists." 46He also said in evidence that in relation to some of the entries in the COPS records where he was a person of interest: "Some I deny. Some I don't know. I don't think I would have. When I was drinking I was outside myself." He said: "I don't know how I can impress you what a different person I am now. By learning experience - behaviours can be changed." 47On 24 November 2011 the Applicant telephoned Lifeline and in that conversation reported that he had sexually assaulted a 14 year old child. He conceded this in cross-examination. He said he had a history of calls to Lifeline when he was using drugs. He also conceded that he had a history of self-harm. He said that he had not sexually assaulted a 14 year old: "I was seeking attention for what I perceived was my mental health problem". He said that what he was diagnosed as suffering was "generally an alcohol abuse problem". 48His evidence is that he suffered from alcoholism "my whole life", and that the only long-term periods of sobriety were from birth to 14, from December 1990 to 2000, and from 3 March 2012 to the present. He said that in the period from 1987 to 2012 he attempted to recover from alcoholism on 6 other occasions. 49In periods when he has been using alcohol he has suffered disruptions to his relationship with D, loss of memory, blackouts, falls and seizures. He has also been unable to establish a relationship with a woman that was more than short term. From his cross examination it is clear that that when he has had seizures it is possible that he cannot remember afterwards incidents of bad behaviour by him. He said he has had no seizures since 26 April, but he is taking anticonvulsants. Later he contradicted himself when he said he had had no seizures since July 2013. 50His evidence at the hearing was he stopped using alcohol on 3 March 2012. When asked what caused him to give up alcohol, he said: "An epiphany if you will. I was sitting with friends and said: 'I'm sick of this and I'm no longer going to do it'." He said he had been drinking all the time. He said he also had binges when he had money available. He had suffered from seizures because of his alcoholism. He had given up alcohol before. He said he gave it up in 1990 when he was having seizures. At that time he was seeing a drug and alcohol counsellor and they agreed it would be good for him to stop. 51But he recommenced drinking in 2000. When asked what caused him to do that he said: "There is no answer to that ... it just occurred to me it would be alright to recommence". He said that D was "very displeased and disappointed" that he had recommenced drinking. He said that D had needed him to drive him at times and he tried to abstain so as to be able to do that. But his drinking made their relationship difficult and D moved out of the house to live with a partner when he was 18. He had completed his Higher School Certificate after he left. 52He said that his present strategies to abstain from alcohol include attending groups, self-help, information sharing, Alcoholics Anonymous and other groups. He said the groups are relapse prevention groups and a group called "Self-Management and Recovery Training" for which he now facilitates. When he made the Application he was currently studying for a Certificate IV course in alcohol and other drugs at TAFE Sydney Institute at the Loftus Campus. He said that a major compulsory component in the course is work placement and this placement can possibly be in an institution where he would be working with children and young persons. 53He said he does not have any say as to in which particular institution he might be placed for his practical experience. He said he believes a disqualification from working with children would render him unable to complete his course if he were where he would be working with children and young persons. 54He said that since March 2012 he has sought assistance and support from his general practitioner, counsellors from the St George Hospital Drug & Alcohol Service, and a psychiatrist, Dr Petherbridge who works with the Drug & Alcohol Services. He has sought assistance from Alcoholics Anonymous Fellowship, relapse prevention groups, and SMART. He said that in 2012 SMART nominated him for training to become a volunteer facilitator and start his own group. He said he has been conducting his group on a weekly basis at the Kogarah Uniting Church since April 2013. He said that that led him to want to undertake the course at TAFE. His evidence is that he is committed to help others hoping to recover from addictions. 55He has lived in the same home for 24 years. He has two cats and enjoys good relations with D, his neighbours and friends. He says he sees D and his wife about twice per month. Neither of them gave evidence in the proceedings. 56His evidence is that his health has improved substantially in the last 2 years and he has lost 19 kilos since May 2013 and improved his blood pressure. He said: "Above all I have gained a strong sense of self-awareness, which has given me the confidence to believe I can not only complete this TAFE course, but do the AOD work very well." 57The Applicant did not provide the Tribunal any expert evidence in relation his alcoholism, the extent of his abstention and the likelihood of relapse. He did not make full disclosure in relation to those matters. c) The age of the applicant at the time of the offence. 58The Applicant was 23 years of age. d) The age of the victim at the time of the offence. 59The victim was 4 years of age and an infant. The victim was extremely vulnerable because of his age and physical and emotional immaturity and dependence upon the Applicant for care and protection. The victim had no other adult present to protect him. e) The difference in age between the victim and the Applicant and the relationship between them. 60The Applicant was 19 years older than the victim. The Applicant was entrusted with the care and protection of the child who was an infant. f) Whether the person knew the victim was a child. 61The Applicant knew the victim was a child. g) The Applicant's present age. 62The Applicant is 54 years of age. h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the offence occurred 63The applicant' s criminal record since the 1983 offence is not particularly serious, but it is extensive. In 1982 he was convicted of Possession of Indian hemp (2), possession of utensils for smoking it , and resisting arrest. Then in 1983 he was convicted of the act of indecency with the 4 hear old. Then his next conviction was not till 1989. That year he had convictions on 21 February for cultivating Indian hemp, possessing equipment, supplying cannabis, and possessing Cannabis seeds. On 26 September that year he was convicted of offensive behaviour (fighting). Then he had no conviction till 26 October 2000 when convicted of driving with the middle range prescribed concentration of alcohol. Then his next conviction was till 19 February 2004 for driving with the high range prescribed concentration of alcohol. 64The only other conviction is the 2009 conviction for indecent exposure in a public place. i) The likelihood of any repetition by the Applicant of the offences of conduct and the impact on children of any such repetition. 65Any repetition of such sexual abuse of a child is likely to cause serious and long term emotional and psychological damage to the victim. 66The Applicant's evidence is that he has at times consulted a psychiatrist through a drug and alcohol service and also had services from a psychologist. The Applicant has not provided any expert evidence by a psychologist or psychiatrist regarding his psychological and emotional health or the issue of the likelihood any repetition of sexual abuse of a child. j) Any information given by the Applicant in, or in relation to the Application. 67There is other significant material provided by the Applicant in addition to the material already related. k) Any other matters that the Commission considers necessary. 68The Applicant did not provide voluntarily any information about the offence in 1983 or about any of the matters in evidence that reflect adversely on him. What information he did provide on such matters was obtained from his cross-examination. He did not comply with the disclosure obligation. 69The submission for the Guardian is that the offence in 1983 raises questions about paedophilic tendencies and the Applicant provides no explanation of the surrounding circumstances or the conduct and no expert evidence assessing him in terms of the risk of him repeating such conduct. 70The Respondent submits that it is more than 30 years since the offence occurred, but there is a lack of evidence of insight into the offence on the part of the Applicant, or effective treatment for the issues underlying the offence (other than alcoholism). 71The Respondent also submits that it is not a situation where his alcoholism can be blamed for his exhibitionism and deviant behaviour on numerous occasions. 72The Respondent also raised the issue about the alcoholism of the Applicant, the fact that he resumed drinking during the period when D was living in his care, and the possibility of him re-commencing alcohol abuse. Indeed, even if one accepts the Applicant's evidence he has been abstinent for only about 2 years and 3 months. 73The Respondent also raises the Applicant's "lack of engagement with, insight into, or treatment for psychosexual issues surrounding his initial criminal offence and subsequent sexual behaviour , including the more recent indecent exposure offence". 74The Respondent also submitted that a: "supplementary concern is the Applicant's comparative social isolation, his apparent lack of involvement in a family network and the absence of an immediate circle of friends or more extended network of community connections". 75In addition the Respondent submitted that the Tribunal should be concerned that the Applicant has not produced any references supporting the Application or brought any evidence from family members or others attesting to his behaviour, abstinence from alcohol and relationships with children. 76The Respondent submits that despite the requirement under ss 28(5) of the Act for the Applicant to "fully disclose any matters relevant to the Application", the Applicant has made a significant failure under that section in respect of various matters, including: (i)His criminal history since the offence and in particular the indecent exposure conviction in 2008; (ii)The extent of his mental health issues (irrespective of their apparent connection to his alcohol abuse); and (iii)His glossing over the details of the offence that has rendered him a disqualified person for the purposes of the Act. 77It might also be said that there has been a serious absence of evidence by experts such as a psychologist or psychiatrist in relation to the Applicant's alcohol issues, behaviour problems and sexual problems. There is no expert evidence as to the extent to which he poses a risk of harm to children. CONCLUSIONS 78In relation to his alcoholism and his sexual conduct the applicant did not make the required full disclosure. Most of the evidence on these issues was extracted from him in cross examination or from police or health records obtained by the Children's Guardian or produced on subpoena issued by the Children's Guardian. 79The applicant claims he no longer uses alcohol, but he has many times tried to stop and failed. His alleged period of abstention is relatively short and there is no expert evidence that it will be long term or of the chance of a relapse as so often has happened in the past. 80His relatively recent incident of calling Lifeline and reporting that he had sexually abused a 14 year old boy is of grave concern, despite his denial. He generally did not impress as open, forthcoming and reliable. There were areas where his version of events contradicted public records or was not credible. 81His history of problem sexual behaviour includes fairly recent incidents and on the evidence has not been treated. There was no expert assessment in relation to this. Nor was there expert evidence of treatment of it. 82In addition there was no psychological or psychiatric evidence of assessment of the level of risk he poses to children. 83The Evidence does not establish that the Applicant is not a risk to children. Accordingly the application should be refused and dismissed ORDERS 84Accordingly, the Order of the Tribunal was: 1) The Application is refused and 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 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: 08 July 2014