"M" v Commissioner for Children and Young People (No 3) [2005] NSWIRComm 318

Industrial Relations Commission of New South Wales

CITATION: "M" v Commissioner for Children and Young People (No 3) [2005] NSWIRComm 318

APPLICANT M PARTIES: RESPONDENT Commissioner for Children and Young People

FILE NUMBER(S): IRC 250 of 2003

CORAM: Boland J

CATCHWORDS: Child protection - Application for declaration that applicant not prohibited person under Child Protection (Prohibited Employment) Act 1998 - Application granted subject to conditions

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998

"M" v Commission for Children and Young People (No. 2) [2004] NSWIRComm 127 "M" v Commission for Children and Young People [2003] NSWIRComm 80 CASES CITED: Commission for Children and Young Persons v V (2002) 56 NSWLR 476, (2002) 127 IR 129 R v Commission for Children and Young People [2002] NSWIRComm 101

HEARING DATES: 07/26/2005

DATE OF JUDGMENT: 09/02/2005

APPLICANT Ms P F Lowson of counsel Solicitor: Ms J Macara MacMahon Associates Pty Ltd LEGAL REPRESENTATIVES:

RESPONDENT Mr M Higgins of counsel Solicitor: Ms M Ford Crown Solicitors Office

JUDGMENT:

- 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Boland J

Friday 2 September 2005

Matter No IRC 250 of 2003

"M" v COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE (NO 3)

Application under s 9 of the Child Protection ( Prohibited Employment) Act 1998

DECISION [2005] NSWIRComm 318

1 "M", the applicant in these proceedings, was employed as a school counsellor with the New South Wales Department of Education and Training. However, he was transferred out of that role in September 2002 when his employer learned he was a "prohibited person" under the Child Protection (Prohibited Employment) Act 1998. Since that time the applicant has been seeking to remove that status and the stigma associated with it.

2 Under the Act a person who commits a serious sex offence is to be regarded as a prohibited person and may not apply for, undertake or remain in "child related employment". Child related employment is defined to include "employment in schools or other educational institutions (not being universities)". A prohibited person may apply for a declaration that the Act is not to apply to the person in respect of a specified offence thereby enabling the person to work in child related employment. 3 The applicant's prohibited person status arose out of an offence involving two counts of indecent assault on females ("the index offence") dealt with at the Prahran Magistrate's Court in Victoria on 30 October 1981. The applicant was placed on a recognisance of $300.00 to be of good behaviour for a period of time and to continue to receive counselling and treatment from a medical practitioner for such period as the medical practitioner deemed necessary. On 29 October 1982 the matters were struck out as the applicant had fulfilled the conditions of his bond. No conviction was recorded. There was no dispute that the offences constituted a "serious sex offence" within the meaning of s 5 of the Act. 4 The two charges arose out of separate incidents in May 1981 and July 1981. Each charge alleged that the applicant approached an adult woman (strangers to the applicant) touched them on the breast and ran away. The applicant pleaded guilty to the charges. 5 The complete background to the applicant's application for a declaration that the Act does not apply to him in respect of the 1981 offences is contained in two earlier judgments: "M" v Commission for Children and Young People [2003] NSWIRComm 80 ("M (No 1)") and "M" v Commission for Children and Young People (No. 2) [2004] NSWIRComm 127 ("M (No 2)"). The first of those judgments dealt with an application by the applicant for an order under s 9(6) of the Act staying the operation of a prohibition pending the determination of the matter. The application was refused. In doing so the Commission expressed concern at the existence of a number of recent allegations against the applicant that involved children, the non-disclosure by the applicant to the Department of Community Services ("DOCS") in 1986 of the 1981 offences and an incident that occurred in 1965. 6 The second judgment concerned an application for the Commission to consider whether certain matters referred to in the Commission's first judgment were relevant to the Commission's consideration of whether a declaration should ultimately be granted under the Act. It was submitted that a pre-hearing in relation to these matters would assist in reducing the complexity and time that might otherwise be involved in the final hearing. The Commission agreed to this course. As a consequence, the Commission decided that two of the matters referred to in its first decision that gave the Commission cause for concern were no longer considered to be relevant to the Commission's consideration of whether a declaration should ultimately be granted under the Act. Those two matters were: (1) the non-disclosure by the applicant to DOCS in 1986 of the 1981 offences; and, (2) the 1965 incident. 7 It now falls to the Commission to determine, in light of its findings in the previous two decisions and the subsequent proceedings, whether the declaration sought by the applicant should be granted. The index offence 8 In M (No 1) the Commission observed at [50] that: In arriving at a decision as to whether I should grant the stay order sought by the applicant I am conscious of the fact that if the only question I had to consider in relation to the stay application were the 1981 offences, there would be little standing in the way of granting the application. 9 In M (No 2) the Commission referred to a table prepared by Ms Lowson of counsel for the applicant that identified the matters prescribed by s 9(5) of the Act to be taken into account by the Commission in deciding whether to make the relevant order under the Act and which also identified the relevant facts as follows: 9(5)(a) The offence in relation to which this applicant is a "prohibited person" were not at the serious end of "serious sex offences" as defined by the CP(PE) Act. There were two incidents where the applicant grabbed adult females on the breast in full public view. An indicator of seriousness of the offence can be found in the penalty imposed which in the applicant's case was the imposition of a 12 month good behaviour bond the conditions of which were fulfilled leading to the dismissal of the charge. In particular, the court did not impose a conviction in relation to these matters. The offences occurred at a time when the applicant was suffering from stressors and depression. 9(5)(a1) The offences occurred in 1981, that is 23 years ago. Further, there is no suggestion of criminal conduct since that time. 9(5)(b) The applicant was 31 or 32 at the time the offences were committed. 9(5)(c) The victims were adults, not children. 9(5)(d1) The applicant is currently 56 years of age. 9(5)(e) The matters outlined above describe the totality of the applicant's criminal record apart from some speeding offences.

10 At [6] of M (No 2), the Commission acknowledged that the table correctly summarised the facts. Ms Lowson submitted that in light of these facts the offence which brought the applicant before the Commission did not, of itself, suggest that the applicant posed a risk to children, and should not prevent a declaration that the applicant was not a prohibited person for the purposes of the Act. 11 In M (No 2) the Commission identified a number of other matters pursuant to s 9(5)(f) of the Act that were relevant to a consideration of whether the declaratory order sought by the applicant should be granted. Those matters were: (1) the "Roberts allegations"; (2) "over-involvement"; (3) self-reported incidents, and the applicant's evidence on those matters at the interlocutory proceedings; (4) the applicant's health. Roberts' allegations

12 The Roberts' allegations may be explained by reference to the decision in M (No 1) at [28] 28 In February and March 2000 notifications were received by the Child Protection Investigation Unit ("CPIU") of the Department that the applicant had approached a mother of one of the students of the high school at which the applicant was working, with a request that she pose for "explicit" photos for transmission on the Internet. The allegations were delegated to the applicant's school principal to investigate. The principal was unable to substantiate the allegations. Apparently, it was decided that because no student or young person under the age of consent was involved, it was not a matter for the CPIU to investigate. However, because of the use of the word "explicit" and because of a suggestion that blackmail was involved, the matter was informally reported to the Child Protection Enforcement Agency for consideration. It was also recommended that the applicant be counselled regarding strategies he might adopt to obviate the risk of such serious allegations in the future.

A mother of a student, one Ms Donna Roberts, made the allegations regarding the request to pose for the photos. 13 The applicant submitted the Commission would not regard this issue as a relevant matter to take into consideration when assessing whether the applicant is a risk to children because: (a) The applicant denies the allegation. (b) The applicant appropriately dealt with the cross-examination on this issue and in so doing disclosed a high degree of understanding of the role of school counsellor. (c) After investigation by the Department [of Education and Training] the allegation was found to be not substantiated; the Principal who investigated the matter found that: (i) the versions were contradictory; (ii) he was unable to verify the incidents. (d) The independent evidence that allegedly existed could not be produced; the Ombudsman's office took no further action in relation to it, inferring that the office was satisfied with the steps that were taken in relation to the investigation. (e) Although there are inaccurate records suggesting that a child or young person was involved, in fact the allegations never involved children or young people. (f) Recognition by the Department of Education and Training that it was not a child abuse matter, nor a matter suitable for caution given the matter was unsubstantiated. (g) It could have been reported to Police and DOCS but there was no follow up by these organisations. Had there been any doubt, either about the involvement of children, or about the conclusion that the matter was not substantiated, organisations other than the Department of Education and training could have reviewed the matter. 14 In relation to the Roberts' allegations, the Commission said in M (No 2) at [70]: 70 With some reluctance, I propose to admit the material relating to the Roberts' allegations. It will be, as the respondent submitted, a question of what weight I might attach to the material, not in isolation but when it is considered with other relevant evidence. Over involvement

15 This matter is described at [71] of M (No 2). It refers to what the respondent had submitted was the applicant's excessive involvement in family and related issues arising from the applicant's role as a school counsellor including such things as home visits outside school days, visiting families in the evening and counselling children about access arrangements when that child was not a student of the school at which he was a counsellor. 16 In his evidence the applicant stated: In 1997 as part of Mr Gary Dawson's review he raised with me allegations of over-involvement in my counselling. To the best of my recollection the issues involved: (i) sitting in on DOCS interviews at the direction of the Principal of Wyong High School; (ii) attempting to arrange care for a child at Brooke Avenue Primary School through DOCS. In about 2001 I received an instruction from Ms Suzanne Davies, the District Guidance Officer, that I should not make telephone calls to parents out of school hours which I complied with. At or around the same time I was reminded of the guideline for home visits by school counsellors, which I also complied with. At no time was any formal complaint made by DOCS or by my employer regarding over-involvement. I agreed to participate in a monitoring process for a period of 12 months which commenced in Term 4 of 1997. At the end of the monitoring period I received a letter from the Department of Education and Training saying that no further action would be taken. Finalisation of the monitoring process meant that there was no problem regarding the issues raised by Gary Dawson or regarding my conduct and that it was not necessary for me to be examined by HealthQuest. 17 In relation to this matter the applicant submitted: (a) There was no suggestion that the applicant breached the direction or guidelines after 2001, noting that the applicant continued to be employed as a counsellor until August 2002. (b) Issues of over-involvement must be weighed in the context of the applicant's overall performance of work as a school counsellor. (c) Given the applicant's demonstrated commitment, it is easy to imagine that such commitment could lead to overwork and over-involvement. Important features of the over-involvement include the fact that the applicant has responded appropriately to directions by his employer and the fact that the employer does not oppose the making of the declaratory order. (d) The applicant was monitored for 12 months during 1997/1998 and no issue of over-involvement arose. (e) Other evidence was that school principals and others "had never received or heard of any complaints or allegations about the applicant"; were "not aware of, and had not received any allegations about [the applicant] relating to inappropriate or improper conduct". 18 In relation to the over involvement issue, the Commission in M (No 2) stated at [73]: 73 I propose to have regard to this evidence in the same way as the evidence relating to the Roberts' allegations.

Self reported incidents

19 In M (No 1) at [29]-[31] the Commission stated: 29 In February 2002 a domestic altercation occurred between the applicant and his long-term partner. The applicant called the police. The applicant claimed to have been baby-sitting his partner's children when his partner came home intoxicated. His partner accused the applicant of swearing at her eight year old son and of entering her 12 year old daughter's bedroom. The police did not take any action over the matter and as there was no evidence of child abuse the CPID took no action.

30 In March 2002 a person with whom the applicant shared a house (not a relationship) allegedly became intoxicated and "deranged". The applicant called the police. The person alleged that the applicant had exposed her five year old son to pornography on the internet, allowed her son to see him naked and inappropriately touched her son.

31 It appears that the police took no action in relation to the incident with the co-tenant but the incident triggered further consideration within the CPID. An investigator did a further risk assessment of the applicant and based on his background and some nine incidents, including those that I have referred to in this judgment, the investigator came to the conclusion that the applicant was a "significant" risk to children. 20 The applicant gave extensive evidence regarding the "self reported incidents", denying any improper conduct on his part. I note the matter involving the applicant's long term partner was the subject of inquiry after the applicant had reported the incident and no further action was taken by CPID. 21 In relation to the self reported incidents the Commission said in M (No 2) at [75]: 75 The applicant submitted that none of these incidents and another involving a threat by a father against the applicant and a Mr Edwards was relevant to a consideration of whether the applicant is a risk to children. These incidents lie very much on the outer edge of relevance but I am concerned that I should not exclude them at this stage because I wish to hear in more detail in any substantive hearing what the parties have to say about whether or not these incidents, the Roberts' allegations and the alleged "over-involvement" issue constitute a pattern of conduct about which I should be concerned or are merely coincidental or isolated episodes that carry no weight and bear no relevance to the issue I am required to determine. O'Brien Report 22 One of the reasons why the Commission was drawn to consider whether the Roberts' allegations, the "over involvement" issues and the self reported incidents might constitute a pattern about which the Commission should be concerned was a report by Judith O'Brien, an investigation officer with CPID. This report was referred to in M (No 1) at [47]-[48] 47 A further consideration is the fact that in recent times the applicant has attracted a number of allegations relating to conduct of a sexual nature. At the respondent submitted, this presents a "worrying picture". It should be observed that two of the allegations came to the notice of authorities as a consequence of the applicant himself reporting incidents involving his partner and a co-tenant. But as the investigator who compiled the risk assessment of the applicant in March 2002 said in her report: It would appear that the women that Mr [M] has had some contact/involvement with are all unempowered women on their own with children, some of whom are already known to DOCS. He assists with custody issues, baby sits, etc. He calls the police if they make allegations when they are intoxicated, the police take no action when the allegations are made. Subsequently, Mr [M] self-refers to CPID. While some of the allegations made while women were allegedly drunk appear minor (eg. swearing at children), the pattern of behaviour that emerges when all of Mr [M's] cases are viewed together is disturbing.

48 The investigator who compiled the March 2002 report assessed the applicant's risk to children as "significant". I have no evidence as to the investigator's qualifications or standing to make the observations she did and what she stated in her report has not been tested in the Commission. However, these are interlocutory proceedings and I am entitled to take the report into account. 23 The Commission referred again to Ms O'Brien's report in M (No 2) at [76]-[78]: O'Brien report

76 Judith O'Brien is an investigation officer with the CPID although what qualifications and experience she possesses I do not know. In "M" v Commission for Children and Young People reference was made to Ms O'Brien's report into the applicant. Having had regard to all of the incidents referred to in this decision Ms O'Brien assessed the applicant's risk to children as "significant".

77 The applicant submitted that a substantial part of the O'Brien report should not be the subject of evidence in the final hearing of this application and should be disregarded as irrelevant to the question of risk to children. It was submitted that: Ms O'Brien mixes up a number of different matters in this very prejudicial summary of matters that have never been the subject of specific allegation nor of disciplinary procedures. And that: Ms O'Brien's apparent prejudice in this regard is also demonstrated in her comments concerning the applicant's friendship with women who are "unempowered". A similar theme appears in other reports concerning the applicant's first two relationships involving women with disabilities. In relation to those matters: (i) neither the applicant's wife nor the woman with whom he subsequently had a relationship had children at the time that he entered those relationships.

(ii) In relation to his current relationship the woman does have children. This is not an unusual consequence of relationships entered into later in life as the older one is the more likely women with whom one has relationships already have children from another relationship.

(iii) There are many potential reasons for him sharing his home with Ms Collins. To characterise it without more as some sort of exploitative pattern of behaviour is without foundation.

(iv) Similarly Ms O'Brien is mistaken when she writes "he calls the police if they make allegations when they are intoxicated." The reasons for the applicant calling the police were unconnected to the allegations themselves. Without the police being involved the allegations would have remained private matters put in the context of a drunken or drug induced state. Baseless accusations in those circumstances are not unusual. There is no suggestion that the allegations have been repeated by the women either to the applicant or to anyone else when not intoxicated.

78 The respondent submitted that the O'Brien report should be admitted in so far as it provides a chronological account of the history of the applicant's notifications and investigations. I will admit it on that basis. If any more is sought to be made of the opinions expressed by Ms O'Brien in her March 2002 report then the respondent will need to consider calling Ms O'Brien to give evidence. 24 No more was forthcoming from the respondent in relation to Ms O'Brien's report and Ms O'Brien was not called to give evidence in the proceedings. Applicant's health

25 The applicant adduced evidence from his treating psychiatrist Dr William Douglas Wade. Dr Wade was required for cross-examination. Dr Wade was aware of the purpose of the proceedings before the Commission. He had been treating the applicant on a monthly basis since about May 2003. He deposed that he treated the applicant for depression. He said he was aware of the applicant's consumption of alcohol, which on any view was at times excessive. Dr Wade stated: The applicant advised me at an early time he consumed alcohol in an attempt to "self-medicate". It appears to me that his consumption of alcohol has reduced over time, as has the need for anti-depression medication. It is my expectation that a successful outcome in the court proceedings will see a rapid improvement in the applicant's stress and depression, and there is no reason why he should not return to the level of mental health that he enjoyed prior to the prohibited employment issue arising. Further, throughout my treatment of the applicant I have not identified any issue of sexual deviance. In my view the applicant does not pose a risk to children and will be fit to continue in his position as counsellor if the court grants his application. 26 Ms Lowson, for the applicant, submitted in relation to the state of the applicant's health: (a) the applicant has demonstrated a high degree of self awareness such that he has recognised that he was subject to stressors and has appropriately sought the assistance of medical practitioners, psychological counselling, rehabilitation providers, psychiatric help and prescribed medication;

(b) the applicant's health has improved over the period of time during which he sought treatment (that is, from the end of 2003 to now);

(c) the present adverse state of his health is predominantly connected to these proceedings, with his treating psychiatrist agreeing that the conclusion of these proceedings will see a significant improvement in symptoms; (d) the applicant freely acknowledged that he continues to suffer from depression and anxiety and did not attempt to disguise his ill-health from the court; at the same time he is receiving appropriate treatment for that ill-heath;

(e) the applicant's use of alcohol (which has always been limited to after work, and which at least at the height of his illness was used for sedative purposes is not such as to draw any adverse inference that it might affect his work performance so as to give rise to a risk to children;

(f) the applicant is very conscious of his alcohol use and has taken appropriate steps to address it;

(g) Dr Wade is aware of the applicant's use of alcohol but this had not prevented him from forming the view that the applicant can return to work as a school counsellor and not pose a risk to children;

(h) the applicant has previously obtained assistance from health care professionals when necessary due to stressors in his life and has conducted a successful career and personal life during the last 20 years; (i) despite stressors in his life since 1981 (including the breakdown of a relationship in 1986, the Slattery review in 1997, and the current proceedings) the applicant has not re-offended;

(j) his treating psychiatrist, Dr Wade: (i) identifies the applicant as being responsive to treatment, and in particular to counselling; (ii) believes that the process of dealing with the present ill health is likely to leave the applicant better able to cope with stressors in the future; (iii) is of the view that the applicant does not pose a risk to children. 27 Ms Lowson further submitted: The applicant submits that Dr Wade was a credible witness whose evidence was extensively tested in cross-examination but whose views - that the applicant did not pose a risk to children, and that there was no health impediment to his return to work as school counsellor – was unchanged as a consequence of that cross-examination. The applicant submits that Dr Wade's affidavit and his oral evidence would support the court coming to the conclusion that the applicant does not pose a risk to children. It is submitted that in giving evidence before the court, whether in cross examination or in chief, the applicant was a credible witness who gave careful consideration to questions, made appropriate concessions and demonstrated significant insight into his medical condition and general circumstances. Further it is submitted that the applicant's evidence is a cogent explanation for his failure to identify the self-reported and Roberts' allegations as relevant matters to have disclosed in the interlocutory proceedings. 28 The state of the applicant's health was a particular focus of the respondent. Indeed, it made no specific submissions about the Roberts' allegations, over involvement or self reported incidents. Mr M Higgins of counsel for the respondent, submitted (references to evidence omitted): The fact that the victims to the index offences were adult females and not children is relied upon by the applicant to assert that the index offences do not, of themselves, suggest the applicant is a risk of safety to children. This is an oversimplification of the complex psychiatric history of the applicant, the extent to which it contributed to the index offences, more importantly, its latency within the applicant since childhood, and it re-emergence at the time of the index offences and since. True it is, the victims of the index offences were not children. However, the real measure of risk for this applicant lies not in the age of the targets for the index offences, but in the identification of factors which gave rise to the index offences, whether they continue to exist, and if so, what strategies exist to keep them under control. The evidence relevant to the assessment of risk derives largely from the oral evidence of Dr Wade. The effect of Dr Wade's evidence is: · The applicant has personality traits which are incapacitating for him; · He developed them in his childhood; · It is very likely/high probability that the applicant suffered post traumatic stress disorder, a major depression or childhood depression; · The applicant carried those personality traits into his adult life; · The residual nature of the personality traits contributed to the development of a major depressive episode in 1981; · The index offences and the personal crisis that preceded it was the first time in the applicant's life he suffered a major depressive episode; index offences were a consequence of the resurfacing of those personality traits; those personality traits caused developmental delays in the applicant as a consequence of the defective relationship with his father; the developmental issues under which the applicant laboured at the time of the index offences resulted in an inability on his part to respond appropriately to the stressors in his life at that time, The index offences were committed in the context of a major depression. · The applicant has developed insights into the personality traits and the extent to which they contributed to the development issues for him. · The applicant has presented with problems of depression and stress since the index offences; · The applicant has since the index offences, presented with a history of unhealthy alcohol use suggestive of poor adjustment within the context of relationships, whether personal or professional; the change in alcohol use did not represent an augmentation of a pre-existing alcohol use but a development of a different alcohol use as part of a depressive pattern; · The applicant's condition, most recently, does entitle him to a diagnosis of a depressive disorder but insufficient symptoms exist for a diagnosis of a major depressive episode; · This condition was a consequence of the re-emergence of residual symptoms from his childhood which continued to exist in the applicant as at 14 September 2004 at which time he still had residual symptoms of a major depressive episode but not sufficient for major depression; · The assessment of risk relevant to the applicant is not solely whether he has the residual symptoms of a major depressive episode. Rather, it is additionally, whether he is able to recognise that the exposure to stimuli likely to exacerbate those latent symptoms. Dr Wade asserts that the applicant continues to have problems dealing with officialdom, authority and authoritative figures in an adult way. His impairment in this regard may be for the rest of his life. The examples from the applicant's life: eg the index offences, and his response to the current proceedings, resulted in the applicant resorting to behaviour that was a manifestation of those residual personality traits from his childhood. Dr Wade is of the opinion that the applicant is aware of his vulnerabilities and has strategies to identify them when they arise. · It is the opinion of Dr Wade that the applicant has developed insights into identifying the trigger to access therapy for prevention of the re-emergence of residual symptoms of depression arising out of the workplace. · The history of the applicant demonstrates that the access to therapy in 1981 was a consequence of a coercive order upon the applicant as a condition of his recognisance; the access to therapy with Ms Railton arose out of a threat to his workplace status; however, Dr Wade is of the opinion that the reason the applicant seeks therapeutic intervention cannot be isolated to a strategy to meet a threat to his sense of security to work, from that of illness behaviour. Conditions on any order made 29 Mr Higgins submitted that in the event that the Commission, nevertheless, considered the applicant to present some risk to children, an order under s 9 of the Act might still be appropriate but subject to conditions. Counsel submitted: It must now be accepted that the IRC may take into account conditions it may impose in considering whether an applicant is able to meet the test in s9(4). If the Tribunal finds that the applicant may pose some risk to the safety of children if granted an unconditional order, it should then consider whether this risk can be alleviated by the imposition of conditions. The relevant risk to consider is the risk the applicant would pose if he complied with those conditions. Accordingly, it is relevant to consider the prospects of the applicant complying with the conditions imposed to assess risk. It is to this extent that the credibility of the applicant is relevant. If there is a doubt as to the applicant's credibility in his evidence before the Tribunal, or about his likely commitment or ability to comply with the conditions, caution should be exercised in imposing such conditions. The evidence before the IRC does suggest a lack of reliability in the evidence of the applicant, and demonstrates that he has been subject to supervisory conditions in the work place. Nevertheless, it would appear the applicant is able to demonstrate both that: · if he complied with the conditions he would not pose a risk to the safety of children; and · there is sufficient evidence to allow the Tribunal to be satisfied that he is capable of and committed to complying with these conditions. 30 The respondent submitted that the following conditions be imposed on the applicant:

· Continued consultation with Dr Wade, or such other professional as directed by Dr Wade;

· Attendances be monthly;

· For a period of 12 months.

31 The applicant in its reply submissions contended that the respondent was not entitled to "sit on the fence" in relation to the applicant's application for a declaratory order but must either support or oppose the application: s 9(7). Further, that the respondent was not entitled to support an order with conditions when it made no submissions as to whether or not the applicant posed a risk; as the respondent itself submitted, conditions are imposed only if there is some assessment that the applicant poses a risk. As the respondent did not make that submission, it could not then support the imposition of conditions. 32 Ms Lowson submitted that the Court could infer that, in the absence of express opposition to the making of the order, the respondent supported the applicant's application. In the alternative, it was submitted that the court should disregard the respondent's submissions altogether as not meeting the statutory requirement in s 9(7), which provides: The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order. 33 I note the applicant's primary submission that the Court, being satisfied that the applicant does not pose a risk to children, should declare accordingly. However, it was put in the alternative that if the Court was of the view the applicant's return to work as a school counsellor ought be attended by continued consultation with his treating psychiatrist or psychologist, the such conditions could be attached for monthly attendance for a six months' period after the granting of the order. Consideration

34 It seems to me there was little difference between the parties as to the approach I should take in this matter. Both parties referred to the decision of Young CJ in Eq in Commission for Children and Young Persons v V [2002] NSWSC 949 where his Honour accepted the correctness of the approach taken by Haylen J in R v Commission for Children and Young People [2002] NSWIRComm 101 that the assessment of risk involves consideration of the right to work: 38 As I have already noted, Haylen J in R , placed considerable emphasis on the right to work. In addition to his reference to the fundamental nature of the right and its protection by United Nations protocols, his Honour also drew attention to the fact that there is a dichotomy between situations where the prohibited person may lose his or her job because of the statute and other situations. His Honour says that this can only be because there is a balancing exercise to be carried out an assessment of risk to children on the one hand and the right to work on the other.

39 The present case does not deal with a person in paid employment so that the direct consideration of the right to work does not enter into the case. However, his Honour's point still remains, why would the Industrial Commission be given jurisdiction to deal with an application under s 9 of the Act unless it involved some assessment of the right to work over the risk to children?

40 I cannot see any reason to gainsay his Honour's thought processes. Moreover, what his Honour says is reinforced by reference to the Minister's Second Reading Speeches about acceptable risks and that there must be a balancing of protecting employees, protecting children from abuse, and protecting reasonable civil liberties.

41. It follows that when approaching the construction of s.9 one must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of serious sex offence. 42. It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". The approach of the plaintiff is to say that children must be read as children generally, and if there is a risk to a section of children which is constituted by a large number of children, then there is a risk to children generally. So that, if in the present case it be said that Mr V is a risk to female teenage children, then he is a risk to children generally. 43. I very much wonder whether that is a proper construction of the Act. If it is to be read so as to preserve a balancing exercise, I would have thought a more balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. If a person is only going to be employed amongst boy children, then the fact that he might be a risk to girl children may be quite irrelevant.

35 Haylen J in R v Commission for Children and Young People found at [104] 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. 36 I intend to follow the approach of Young CJ in Eq and Haylen J as expressed in the above passages.

37 In relation to the Roberts' allegations, the self reported incidents and the over involvement issues, it may be seen from my observations regarding these matters in M (No 2) that none of them were regarded by the Court as being at the core of any consideration of the issue in these proceedings. However, I did not dismiss these matters at that stage because I was interested to see whether any further information would come to light in relation to them that might give me a different perspective on the applicant's conduct. No further information has been forthcoming and I am now comfortable in coming to the conclusion that the three matters, whether they are taken individually or collectively, do not suggest or indicate in any way that the applicant is a risk to children. 38 In relation to the matters I am required to take into account pursuant to s 9(5)(a)-(e), I find as follows: (a) The offence in relation to which this applicant is a "prohibited person" were not at the serious end of "serious sex offences" as defined by the Act. The penalty imposed which in the applicant's case was the imposition of a 12 month good behaviour bond the conditions of which were fulfilled leading to the dismissal of the charge. In particular, the court did not impose a conviction in relation to these matters. (b) The offences occurred in 1981, that is 24 years ago. (c) The applicant was 31 or 32 at the time the offences were committed. (d) The victims were adults, not children. (e) The applicant is 56 years of age. (f) There is no evidence of criminal conduct since 1981 (apart from speeding offences).

39 On the face of these findings it would be unreasonable and illogical to come to a view that the applicant posed a risk to children. The respondent contended, however, that: [T]he real measure of risk for this applicant lies not in the age of the targets for the index offences, but in the identification of factors which gave rise to the index offences, whether they continue to exist, and if so, what strategies exist to keep them under control. 40 This is where the evidence of Dr Wade becomes important. It would appear that a contributing factor to the offences committed by the applicant in 1981 was the stress he was experiencing in relation to his wife's deteriorating mental condition. The applicant has presented with problems of depression and stress since the index offences occurred. He continues to suffer from depression and anxiety (although a significant cause of that appears to be connected to these proceedings). Further, it would appear that a manifestation of the applicant's depression and anxiety has been his consumption of alcohol, which the respondent described as "unhealthy". Will future stressful episodes lead to a situation where the applicant poses a risk to children?

41 The applicant is aware that he is subject to stressors and has appropriately sought the assistance of medical practitioners, psychological counselling, rehabilitation providers, psychiatric help and prescribed medication. I consider a fair inference to be drawn from the evidence is that the applicant, being conscious of his vulnerabilities, is likely to seek appropriate therapeutic intervention in a timely way. Dr Wade said the applicant was responsive to treatment and, indeed, he agreed that the conclusion of these proceedings will see a significant improvement in the applicant's symptoms. Most importantly, Dr Wade was of the view that the applicant did not pose a risk to children 42 As for the applicant's use of alcohol, it was limited to after work and was, at least at the height of his illness, used for sedative purposes. The applicant is very conscious of his alcohol use and has taken steps to address it. Dr Wade was aware of the applicant's use of alcohol but this had not prevented him from forming the view that the applicant can return to work as a school counsellor and not pose a risk to children. The applicant's use of alcohol is not such as to draw an adverse inference that it might affect his work performance so as to give rise to a risk to children.

43 I agree with counsel for the applicant that Dr Wade was a credible witness whose evidence was extensively tested in cross-examination. He, nonetheless, adhered to his view that the applicant did not pose a risk to children, and that there was no health impediment to his return to work as school counsellor.

44 As the applicant submitted, despite stressors in his life since 1981 the applicant has not re-offended. Further the applicant worked extensively with children in his role as school counsellor for many years with no allegations being made against him during that time, which included a period of close monitoring in 1997.

45 The applicant's employer has not sought to intervene in the proceedings to oppose an order. Further, I note the statements of Suzanne Davies who was a District Guidance Officer and M's supervisor until first semester in 2002 and Paul Day who was the Principal of a school at which M was school counsellor. Ms Davies found M to be "diligent, reliable, cooperative and dedicated to the welfare of students in his care. Ms Davies said: [D]uring the time I worked with [M], I had full confidence in his relations with students and did not believe he constituted a risk to safety of children in his care. On no occasion did I receive feedback from students, colleagues, parents or teaching staff, which would have suggested that [M] was improper or unethical towards students. 46 Mr Day said in his statement that he had known M for about two and a half years and that: In my time [M] acted in a professional manner. His integrity and ability with underprivileged children from a large housing commission estate were highly commendable. [M] made a significant contribution in establishing an outreach teacher position to deal with "at risk" children. The submission and special program were looked upon favourably by student welfare officers within the Department. The success of this program was largely due to the talent and hard work of [M]. In my opinion [M] is not a threat to the well being of children. In fact I believe he has exceptional knowledge and skill to advise young people to improve their circumstance. As principal one would often get complaints about counsellor performance from teachers or parents. In the time [M] worked as a counsellor at my school I cannot recall one complaint. 47 In addition to the statements of Ms Davies and Mr Day, eight letters were tended from various persons that included parents, teachers and a psychologist attesting to M's good character in the context of his relations with children. 48 There is a very strong case for concluding that the applicant does not pose a risk to children. The only area of doubt is the state of the applicant's mental health. The applicant continues to suffer from a depressive illness but I am advised that the current proceedings is contributing to that illness because of the stress and anxiety it has caused to the applicant. I would prefer to provide the applicant with some further time to improve the state of his mental health and, hopefully, that will occur with the making of the orders in this matter. In other words, in order to put beyond any reasonable doubt that the applicant does not pose a risk to the safety of children I propose to make an order declaring that the Act does not apply to the applicant in respect of the 1981 offence subject to the conditions that: (a) The applicant continues his consultation with Dr Wade, or such other professional as directed by Dr Wade; (b) Attendances be monthly; (c) For a period of six months. Orders (1) Subject to the conditions set out in order (2) the Court orders that the Child Protection (Prohibited Employment) Act 1998 is not to apply to 'M' in respect of the 1981 offence identified in these proceedings. (2) Order (1) is subject to the following conditions: (a) That M continues his consultation with Dr Wade or such other professional as directed by Dr Wade; (b) That M's attendance for consultation shall be monthly; (c) That the period of consultation shall be six months from the date of this decision. (3) The Industrial Registrar is directed to serve a sealed copy of these orders on the Commissioner of Police. _____________________________

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