WV v Commission for Children and Young People [2006] NSWADT 279 (26 September 2006)

Last Updated: 26 September 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: WV v Commission for Children and Young People [2006] NSWADT 279


PARTIES: APPLICANT
WV
RESPONDENT
Commission for Children and Young People



FILE NUMBERS: 064007

HEARING DATES: 10/05/2006 & 17/07/2006

SUBMISSIONS CLOSED: 17/07/2006



DECISION DATE: 26/09/2006

BEFORE: Britton A - Judicial Member





LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998
Children and Young Persons (Care and Protection) Act 1998

CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949
R v Commission for Children and Young People [2002] NSWIR Comm 101

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
I Bourke, barrister

ORDERS: 1. Within four weeks of the date of these orders the applicant, if he so elects, is to file with the Tribunal and serve on the Respondent any further evidence on which he seeks to rely on the issue of conditions
2. The matter is to set down for further directions on 31 October 2006 at 2:00 p.m. Leave is granted to all parties to attend by phone providing they advise the Registrar in writing no less than 48 hours before the scheduled directions hearing
3. In the event the Applicant provides no evidence pursuant to Order 1, or notifies the Tribunal that he does not wish to proceed to have the issue of conditions determined, the matter is to be listed for dismissal at a date to be fixed by the Registrar
4. Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders


Reasons for Decision:

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 The Applicant applied for an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (Child Protection Act), having been convicted of a ‘serious sex offence’ as defined by the Act, namely one count of ‘aggravated indecent assault’. By the operation of s 5 of the Child Protection Act, the Applicant is a ‘prohibited person’ and it is an offence for him to apply for, undertake or remain in ‘child-related employment’.

2 The trigger for this application is the Applicant’s wish to foster a 13-year-old boy. He advises that in the course of making enquiries about fostering the child he became aware that some of the work he had been involved with, namely the fitting of wheelchairs for children with disabilities, might constitute ‘child-related employment’, and cited this as a further reason for making his application. In May of this year stay orders were made which allowed the Applicant to complete existing contracts, provided that an adult was present at all times.

3 The Respondent opposed both the stay and the substantive application.

4 In these reasons, because of the sensitivity of this matter, I have decided not to provide any details that could identify the Applicant or anyone referred to in the proceedings other than the experts. The Applicant is referred to in these reasons by the pseudonym ‘WV’ and the proposed foster child, ‘the Child’.

Relevant legislative provisions

5 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection Act is not to apply to him or her. Section 9(1) provides that, on application from a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply to him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9).

6 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account:

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

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person’s total criminal record,

(f) such other matters as the tribunal considers relevant.

Risk to children

7 The Applicant carries the onus, on the Briginshaw standard, that he is not a risk to children. The meaning of the word ‘risk’, for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on,

‘...not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.’ (Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].)

8 Young J held at [42] that ‘risk’ in the context of s 9(4) meant "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child". That test is now binding on the Tribunal.

9 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission that it was not permissible to impose conditions in order to lift the applicant over the risk threshold. His Honour said that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an applicant ‘who would otherwise pose some risk to children into an applicant who does not pose a real unacceptable risk to children’: para [46].

The index offence

10 The Applicant is 48 years old. He is divorced and has no children

11 In 1994 he was convicted at the Sydney District Court on one charge of ‘aggravated indecent assault’. The Applicant was 33 years of age at the time of the offence. The victim was a nine-year-old boy.

12 The Applicant pleaded not guilty. He has never resiled from the claim that he was innocent and maintained his innocence throughout these proceedings.

13 On the night of the offence, the Applicant had been a dinner guest at the victim’s home, at the invitation of the victim’s mother. After dinner the victim and his brother were sent to bed and the mother, the Applicant and a mutual friend moved to the lounge room. The Applicant left the room to use the bathroom.

14 The boy’s account was that the Applicant entered the bedroom which he shared with his brother, lay down beside him, placed his hand under the covers and fondled his penis. The boy claimed that he complained to his mother the next morning.

15 The Applicant gave a very different account. He said that on his way to the bathroom he noticed that the two boys were "mucking up". He told them to settle down and gave each a lolly, and told them it was "our secret". He claimed that the boy had been jumping on the bed and his pyjama pants were in disarray. While assisting the child to put his pants back on the boy’s penis "got caught" in the pyjama cord and he pushed it back into his pants. The touching was momentary. He then returned to the lounge room and resumed the conversation with his companions.

16 Charges were not laid till three months after the incident.

17 In these proceedings, the Applicant claimed that he had been in an intimate, short-term relationship with the victim’s mother. He claimed that a couple of weeks after the incident, but before he had been notified of any complaint, the mother, to his surprise, told him that her husband, who was then not living at the family home was about to return, and that was the "[l]ast I heard from her". The Applicant acknowledged that no mention was made of that relationship at the trial. He said that had he made that public the marriage would have been destroyed.

Criminal History

18 The Respondent tendered a copy of the Applicant’s criminal history. It records that in 1992 he was charged with ‘cause child abuse’. That charge was "adjourned generally".

Reasons for Application

19 As noted, the Applicant cited his wish to foster, and ultimately adopt, the Child as the primary reason for making the application to the Tribunal. In his view, he is able to offer the Child a good life and represents his best chance of staying out of trouble, as he grows older. Importantly, he contends that the Child sees him as a father figure and wants to come and live with him. He says that his involvement with the Child made him realise that there is a hole in his life because he has no children of his own and is unable to have any.

20 He also gave said that he made the application because of his desire to continue to be involved in that part of his business which involved some child-related employment, namely, the design and fit of wheelchairs for children with disabilities. In addition, he said he wanted to continue with various community activities which he thought might involve some voluntary child-related employment.

Employment History

21 The Applicant served in the army for 21 years. He retired after the conviction. He asserts that he was not "Dishonourably Discharged" and had he been he would have lost his pension entitlements, which he did not. The Respondent disputes this.

22 For over ten years the Applicant worked part-time in a voluntary capacity for a not-for-profit organisation, established to provide disadvantaged and troubled children with the opportunity to learn how to sail.

23 The Applicant currently owns a small business, a small part of which is devoted to the design, manufacture and fit of wheelchairs for adults and children. On the final day of hearing, the Applicant advised the Tribunal that he was finalising arrangements to sell that business to a nationwide franchise. He said he had yet to decide whether he would buy into the franchise or work as consultant. He thought it possible that in the new company his role would change and he might take on more of a training role. He thought it probable than in this new role he would be required to continue to do some ‘child-related employment’ namely, the fit of wheelchairs. He said that in most cases when he met with a child client to measure and later fit the chair, a colleague and an occupational therapist would accompany him. However, where the child resided in a remote location he said it was possible that he would be unaccompanied as it was unlikely that an occupational therapist would be available and it was too expensive to take colleague on the road. He said that he always insisted that a parent or carer be present when he was in the company of a child client.

Dealings with the Child

24 The Child has been under the parental responsibility of the Minister for Community Services for the past six years. For most of that time the Child has been in the care of his grandmother. The Applicant and the Child met late last year when the Child approached the Applicant for work. According to the Applicant, he gave the Child a few odd jobs, found him to be a good worker and the relationship blossomed from there. Over time the Child became a regular visitor at his office and, according to the Applicant, was popular with staff and customers alike. The Applicant said his staff "looked out" for and took an interest in the Child.

25 Over time the Applicant became friendly with the Child’s grandmother and helped her in with various ways. According to the Applicant, she is a good person but is unable to manage money and handle some of the Child’s more challenging behaviours.

26 Earlier this year, the Child was removed from the grandmother and placed with another carer. Evidence was given in these proceedings by Department of Community Services’ officer, Denise Ryan, that one of the reasons for that decision was the undisclosed contact between the Applicant and Child. It is not in issue that at all material times, the grandmother was aware of and consented to that contact.

27 Ms Ryan told the Tribunal that in March of this year she advised the Applicant they if he wanted to continue to have any dealings with the Child he would need to undergo a police and ‘working with children’ check and, until such time as these matters were attended to, he was not permitted to have any contact with the Child.

28 Since then the Applicant has had occasional contact with the Child by phone and email. Also at the Child’s request, he has met him on occasion at his school. The Applicant claims that on all occasions it was the Child who initiated the contact. He said he felt he could not "close the door" in the Child’s face when he contacted him and begged for help. He claimed that on all occasions after Ms Ryan’s directive when the Child contacted him he tried to notify DoCS but the relevant officer was always away or unavailable. He said he had counselled the Child of the need to obey DoCS’ directive and that if he failed to do so his attempts to foster him might be thwarted.

29 The Child’s grandmother gave evidence in these proceedings. In her opinion, the Applicant had been a great support to her grandchildren and represented a much-needed father figure in their lives. She testified that the Applicant never gave her any reason for concern and nor had the Child complained to her about him. In her opinion, the Applicant did not pose a risk to the safety of children.

30 She testified that she was aware that the Applicant had been convicted of some offence in the past but did not know the nature of that offence.

Character evidence

31 In addition to that prepared by the grandmother, the Applicant tendered eight character references. All referees spoke highly of the Applicant and a number made particular mention of his exemplary work in the community.

32 Three referees expressly addressed the Applicant’s dealings with children. One, a long time friend, stated that over the years his children often spent the school holidays with the Applicant. In his view, the Applicant had the ability to bring out the best in children and would make an excellent father.

33 Another referee, who like the Applicant had some involvement in the organisation set up to assist troubled youth referred to at paragraph 22 of these reasons, provided a written reference and also gave oral evidence. He explained that among other things the organisation took small groups of children out as "crew" on a sailing boat for up to four days accompanied by adult workers whose numbers sometimes included the Applicant and himself. He said the children and adult workers held the Applicant in the highest esteem and he had not heard of any complaint being made against him. He said he had been vaguely aware that the Applicant might have had some sort of criminal record.

34 The Applicant also tendered a statement prepared by the Child’s older brother. The brother stated that he had read the statement prepared by Ms Ryan and disagreed with much of it. He stated that under the guidance and support of Applicant the Child had settled down and his behaviour had improved. He said the Child repeatedly told him that he wanted to live with the Applicant. He believed the Applicant to be an extremely generous person and had helped him, his family and many members of the local community. He stated that he wished he had been lucky enough to have a father like the Applicant.

Expert Evidence

35 The Applicant was seen by psychologist, Dr Christopher Lennings, at the request of the Respondent. A report prepared by Dr Lennings dated 23 June 2006 was tendered in these proceedings.

36 The Applicant gave an account of the index offence to Dr Lennings that accorded with that given to the Tribunal. Dr Lennings stated that his assessment was based on the assumption that the Applicant was guilty of the index offence.

37 Dr Lennings hypothesised that the offence might have had more to do with the Applicant’s "own conflicts associated with a somewhat lonely and loveless childhood" and was motivated more by a need for intimacy that sexual deviance per se. He recorded that the Applicant denied being sexually aroused by children and that his sexual orientation was towards adult women.

38 Dr Lennings saw no evidence of sexual deviancy although he believed the index offence might imply some deviancy. However, in his view it might have been "committed around out of a lapse of control around intimacy needs rather than sexual deviancy as such".

39 Dr Lennings assessed the Applicant’s risk to children using two assessment tools- STATIC-99 and clinical assessment.

40 STATIC-99 is an actuarial test used to predict recidivism rates among sex offenders. According to Dr Lennings, on this test the Applicant fell within the low range, placing him in a group of group of known sex offenders, of whom it is it is predicted that 7% will sexually re-offend within 15 years.

41 According to Dr Lennings this low risk rating was confirmed by clinical assessment. He thought that in overall terms where the opportunity for risk was low to medium, such as the work of fitting children with wheel chairs, the risk posed by the Applicant "is probably quite low". However, he went on to state that the "[r]isk equation is also dependent upon the opportunity to offend and the vulnerability of the potential victim(s), and, in this case, the Applicant’s relationship with [the Child] confers the highest level of opportunity and the highest risk of vulnerability".

42 Despite his misgivings about the shortcomings of an assessment in which the Child was not interviewd, Dr Lennings concluded that the possibility of risk arising out of the relationship between the Child and the Applicant could not be "ruled out". He was at pains to point out that this assessment might represent a disservice not only to the Applicant but the Child and urged DoCS to undertake a more vigorous and thorough risk assessment that included observing ongoing but supervised contact between the two.

43 Dr Lennings thought there was no risk that the Applicant might be violent.

Findings and conclusions

44 It is not for the Tribunal to determine whether the Applicant ought to be approved as an ‘authorised carer’ or, whether, the Child ought to be placed in his care. The Director General of DoCS is charged with the responsibility for those decisions. (See Chapter 8, Part 1 of the Children and Young Persons (Care and Protection) Act 1998.) The Tribunal’s jurisdiction in these proceedings is limited to deciding whether the application made under s 9 of the Child Protection Act ought to be granted. The decisions are nevertheless linked. It goes without saying that unless the order sought by the Applicant is granted, he will not be approved as an authorised carer and the Child will not be placed in his care. If the order sought is granted the Applicant is not guaranteed that he will be approved to foster the child. .

45 The key issue to be determined is whether the Applicant poses a real and material risk to children and, if so, whether that risk can be reduced to one of no material significance by imposing appropriate conditions. The Applicant bears the onus of demonstrating that he poses no material risk to children.

46 There is no evidence to contradict the Applicant’s claim that his desire to foster the Child is motivated by anything but altruism. As a number of his referees attest, he has a long history of working within the community and with disadvantaged youth. I agree with the observation made by Dr Lennings that, viewed overall, there in no evidence of anything sinister in that involvement.

47 DoCS’ officers understandably have been concerned that an adult, whom they did not know, had been in regular contact with the Child and, after being directed not to, continued to be, albeit infrequently. It is relevant, in my view, that the contact took place over a period of about six months and in that time the two were in largely unsupervised regular and direct contact. As the evidence reveals, there has been ample opportunity for inappropriate conduct, the occasion of the Child sleeping over on the Applicant’s boat being but one of many examples. There is, however, not a scintilla of evidence to suggest that anything untoward took place on those occasions.

48 Also in the Applicant’s favour is the absence of any evidence of any inappropriate conduct involving children either before or after the index offence. His employment history and community involvement reveal that he has had contact with different children in various situations for close to two decades.

49 Nevertheless, the facts surrounding the index offence cannot be ignored. The Applicant, from first to last, has insisted that he was wrongly accused and convicted. It is a matter of common knowledge that despite the heavy evidentiary onus carried by the prosecution in criminal proceedings, on occasion wrongful convictions are entered. It is possible that this is one such case. If, as the Applicant contends, he was innocent, a great injustice has been committed. However, without any fresh evidence it is simply not open to me to look behind the facts of the conviction. I must therefore proceed on the assumption that the Applicant inappropriately touched the boy in the manner alleged.

50 While this is the only reported incident of offending conduct involving children, nevertheless the offence can only be regarded as most serious in nature. It involved direct hands-on offending with a prepubescent child by a person who held a position of trust. There is no evidence of any mitigating factors. The Applicant had been drinking but was not drunk. He was a mature adult. Nor is there any evidence to indicate that the incident occurred at a time of particular stress in the Applicant’s life, which might explain what would appear to be uncharacteristic behaviour.

51 Dr Lennings believes that the risk the Applicant presents to children in general is low. However, he was not prepared to rule out the possibility that the Child might be at risk if placed in the Applicant’s care. He believed that the Child’s desperation to have some sort of father figure and his consequent emotional vulnerability combined with the Applicant’s potential inability to identify the boundaries between appropriate and inappropriate touch, meant that a repeat of the type of conduct evidenced in the index offence was possible.

52 This is not an easy decision. It is a matter of common knowledge that there is a shortage of suitable people willing to, and capable of, taking on the challenging role of fostering a teenage child. If, as the Applicant, the grandmother and the brother report there is a real bond between the Child and the Applicant, then it would be extremely unfortunate if he were to be disqualified from proceeding to apply to take on that role the role of foster parent if he poses no risk to the child.

53 The Applicant bears a heavy evidentiary onus. The legislation requires him to prove a negative. While ever he continues to deny the offence there is no basis on which a finding could be made that he has gained an insight into what caused him to act in this apparently uncharacteristic way. It is a Catch 22. The evidentiary difficulties faced by the Applicant are compounded by the fact that the assessment of risk in his case is to be tested against what is arguably the highest risk category of child-related employment.

54 For these reasons, I cannot be comfortably satisfied that the Applicant does not pose a real and material risk to the safety of children in the context of providing foster care, or, to use the language of the Children and Young Persons (Care and Protection) Act 1998, the providing of "out of home care" by an authorised carer.

Conditions

55 Having made that finding it is necessary to proceed to consider whether it is possible to impose conditions under s 9(9) to reduce any risk the Applicant might pose to one that is not a ‘real and unacceptable’.

56 Given that foster care is unsupervised on a day-to-day basis, I do not believe it would be possible to formulate appropriate conditions to reduce the Applicant’s risk in this area.

57 It might, however, be possible to formulate appropriate conditions in some of the other areas nominated by the Applicant, such as community work and the design of wheelchairs for children. However, on the evidence before me it is not possible to make that determination. I also note that the Respondent has requested the opportunity to be heard if the making of an order subject to conditions was to be further explored.

58 The Applicant was self-represented in these proceedings and the evidence he provided about future child-related employment lacked particularity and was largely uncorroborated. These shortcomings were exacerbated by the fact that at the time of hearing the Applicant’s business was in a state of flux and he could not predict with any certainty the precise form that any future child-related employment might take.

59 In my view, the Applicant ought to be provided with an opportunity to submit additional evidence about the type of child-related employment he would like to undertake. Such evidence should detail the nature of any proposed employment and, where possible, be supported by some independent evidence.

60 Accordingly I make the following orders:

1. Within four weeks of the date of these orders the applicant, if he so elects, is to file with the Tribunal and serve on the Respondent any further evidence on which he seeks to rely on the issue of conditions.

2. The matter is to set down for further directions on 31 October 2006 at 2:00p.m. Leave is granted to all parties to attend by phone providing they advise the Registrar in writing no less than 48 hours before the scheduled directions hearing.

3. In the event the Applicant provides no evidence pursuant to Order 1, or notifies the Tribunal that he does not wish to proceed to have the issue of conditions determined, the matter is to be listed for dismissal at a date to be fixed by the Registrar.

4. Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders.