BHY v Children's Guardian

The evidence relied upon in the hearing

1. The applicant relied upon the following documentary material: 1. Application filed 2 June 2014; 2. Documents filed on behalf of the applicant on 22 August 2014 - Exhibit A1; 3. Letter dated 10 September 2014 filed 14 September 2014 enclosing a report from Dr Tony Robinson dated 26 August 2014 - Exhibit A2; 4. Applicant's outline submissions filed 24 September 2014 - Exhibit A3; 5. Chronology prepared on behalf of the Applicant - Exhibit A4; 6. Letter of instructions to Gerard Webster, psychologist including NCAT Procedural Direction 3 and letter dated 17 December 2014 from Gerard Webster in response - Exhibit A5;
2. The respondent relied upon the following documentary material: 1. Bundle of 3 volumes comprising 962 pages of information collated by the Children's Guardian utilised in determination of the administratively reviewable decision and filed 30 June 2014 - Exhibit R1; 2. Outline of submissions for the respondent dated 12 September 2014 - Exhibit R2; 3. Letter dated 23 September 2014 foreshadowing an application to adjourn the hearing of the application due for commencement on 24 September 2014 - Exhibit R3; 4. Letter dated 10 September 2014 requesting information referred to at pages 180 and 893 of Exhibit R1 concerning a letter dated 19 June 1998 and allegations against the applicant by his niece and nephew relayed by their mother to a member of the religious organisation to which the applicant belongs, and the response to that letter by the more senior member in that organisation proposing a referral to Encompass Australasia for an appraisal of the applicant - Exhibit R4.
3. The applicant gave oral evidence and was cross-examined. Dr Webster was also cross-examined on 20 January 2015.
4. A number of supporting witnesses for the applicant were called to give oral evidence and were cross-examined on 19 and 20 January 2015. None of the supporting witnesses considered that the applicant constitutes a risk to children. The supporting witnesses trust the applicant and believe that he has told them the truth. None of those witnesses have observed any adverse behaviours by the applicant in the presence of children. Generally, they were supportive friends of the applicant. Further comments will be made about the importance of this evidence in the appropriate subheadings when referring to section 30 (1) of the Act considerations.
5. Both the applicant and respondent provided further written submissions, not marked as exhibits, which have been read by the Tribunal before making its determination. Where appropriate, those submissions will be referred to in these reasons. The applicant was represented by Counsel who was in turn supported and apparently instructed by an agent who is described as a Manager, and is not a solicitor. It is apparent from the agent's letters in evidence as part of the exhibits that he is associated with the religious organisation for which the applicant works and with which the applicant wishes to continue to work. The respondent was also represented by Counsel, instructed by the NSW Crown Solicitor.
6. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.
7. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
8. Mr McMahon, counsel for the applicant, did not cavil with submissions made by Mr Higgins to the effect that neither party in proceedings under section 27 of the Act bears a legal burden of proof. Submissions concerning these matters were made to the Tribunal on 23 September 2014 (and after the proceedings completed). The earlier date was prior to the decision in BJB v NSW Office of the Children's Guardian (No 2) and the paragraph quoted from that decision is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
9. Mr Higgins made helpful submissions concerning the effect of a number of authorities to which he referred and the 'practical onus' which falls on a party notwithstanding the agreement with the principles referred to in the previous two paragraphs of these reasons. The Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
10. In submissions Mr Higgins asserted that the practical or forensic onus is carried by the applicant because the applicant "is better placed to adduce the evidence of his conduct and his personal development which assist (sic) the Tribunal in determining whether he is a risk to the safety of children." (Submissions 20 February 2015 at [27].) In support of that submission Mr Higgins also relies upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
11. The Tribunal accepts the submission in so far as it simply repeats the effect of section 27(4) of the Act, however it is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

1. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not currently controversial. They are again now referred to so that the legislative basis of this decision is transparent.
2. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
3. There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
4. The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
5. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
6. Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows: "14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person."
7. The matter referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian is the matter referred to in clause 2 which is as follows: "A person has been the subject of a finding by a reporting body that the person engaged in the following conduct: (a) sexual misconduct committed against, with or in the presence of a child, including grooming of a child, (b) any serious physical assault of a child."
8. An investigation report was written by a solicitor dated September 2007 in which the investigator found on the balance of probabilities that an allegation of sexual misconduct with a child was sustained: Exhibit R1, Tab 8, pages 97, 103. This was reported to the NSW Ombudsman's Office for consideration, and indeed the further review was prompted by the Ombudsman on 22 February 2007. This finding was sufficient then to trigger a risk assessment under section 14 of the Act.
9. This behaviour constitutes "child abuse" as referred to previously in section 227 of the Children and Young Persons (Care and Protection) Act. The behaviour of the applicant is described in more detail under the relevant considerations referred to later in this decision.
10. The outcome of that investigation was that the applicant had to undertake a detailed assessment with Encompass Australasia to determine his suitability for work with the religious organisation and to assist in determining what role he should undertake. Until that assessment was complete it was recommended that the applicant continue to work in the religious organisation in a restricted role.
11. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
12. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
13. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
14. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
15. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
16. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
17. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings.
18. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. It is useful to now set out the reasoning behind that determination in this decision.
19. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.
20. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.
21. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act. Neither party made submissions about the effect of the applicant's previous classification under the repealed legislation upon the current application. It is at least arguable that there is some relevance. The Tribunal has therefore placed no reliance upon the previous formal classification for the purposes of this determination which is based on the evidence now before the Tribunal.
22. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
23. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
24. In the following paragraph the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
25. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.
26. In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states: "Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."
27. If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.

The Issue

1. As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
2. There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
3. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
4. It was submitted by Mr Higgins that the Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, it was submitted that the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, it was also submitted by Mr Higgins that the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481. These submissions appeared to not be the subject of contest between the parties. It may not be necessary, however, in this matter to decide whether these aspects are part of the Tribunal's functions and powers.

Considerations and the Evidence

1. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
2. Section 15 of the Act provides as follows: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
3. Section 30 of the Act provides as follows: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's 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 Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
4. The evidence will be considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings within the required considerations under the Act.

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

1. Eccleston Consultancy and Investigations conducted an assessment for the religious organisation employing the applicant. This investigation concluded with a report dated 22 October 2006. A further report was provided to the Ombudsman dated 21 December 2006. The NSW Ombudsman's Office requested a review of the findings of the original investigation. This was conducted by a solicitor and completed in September 2007.
2. The finding of the last of these reports sustained an allegation on the balance of probabilities, at Exhibit R1, pages 94 and 97, that: "… on at least one occasion in the family swimming pool… [The applicant] diverted [his niece's] attention away by throwing a ball across the pool and whilst she went to get the ball [the applicant] put his arms around [his nephew] from the back, held him tightly and rubbed his erect penis against [his nephew's] buttocks."
3. On dates variously described as 1984, 1989 or 1992 depending upon the investigative report and the person who relates the information, the applicant was in a swimming pool with his nephew and niece. The exact date is not as relevant as the conduct. But it is possible to determine the date with some more accuracy by considering other facts.
4. The applicant's niece recounted to the police in a formal statement an incident in a swimming pool. The applicant threw a ball to the other side of the pool while he was standing in the shallow end of the pool and told his niece to retrieve it. Whilst the niece was swimming to retrieve the ball she turned and observed the applicant hug his nephew from behind in a "bear hug". The applicant held his nephew for what seemed a long period of time and the nephew had a look of "absolute terror" on his face. After the applicant released his nephew, who then swam away, the applicant was observed by the niece to have a "bulge in the front of [his] shorts": Exhibit R1, pages 552, 572 at [6] and [7]. Shortly afterwards, in the house the nephew was with his sister who observed that he was shaking and very quiet. The nephew said to his sister words to the effect of: "Did you see [the applicant] rubbing his penis up and down my bum?"
5. The mother of those children referred to incidents occurring prior to her separation from the applicant's brother, which separation occurred when the children were aged 12 and 9: Exhibit R4. The nephew referred to an incident of abuse, when talking to a friend, as having occurred when he was 6, which was in 1984: Exhibit R1, page 574.
6. The mother received a telephone call from a person described as an Administrator in the religious organisation on 10 June 1998. In a letter from the Administrator, recorded in Exhibit R4 dated 19 June 1998, the mother of the children is reported to have previously stated to the Administrator: "…when [the applicant] was home on holidays, the children of the marriage complained to the mother that [the applicant] was touching them inappropriately whilst holding them in the swimming pool. The children said they didn't like it when [the applicant] came, because he did rude things to them. The children were 12 and almost 9 when the marriage finally ended, and these incidents occurred before the separation."
7. During the course of the telephone call on 10 June 1998 the Administrator records the content of the conversation in the letter as follows: "I explained my telephone call was in relation to the information she had given me over the telephone a number of years before, and that it had nothing to do with the [religious matter]. I told her my concern was for the children, and others. I asked if her children had been affected by what had happened to them, if they'd had counselling and told her there were avenues through which she could make a complaint. She said that the children don't have any contact with [the applicant's] family now, and so they are all right. She is pleased about the situation. … She said that you never know what affect (sic) something like that could have on children. She stated categorically that she didn't want to make a complaint. She didn't want to ruin someone else's life. I said there was a national number that she could ring. She again said that she did not want to make a complaint, but she was sure that they would hear about him from someone else. I then asked if she was aware of any other incidents of abuse, with other people. She said people like this continue to offend and so she was sure other complaints would come to light."
8. The first report made to the Administrator was apparently 4 years prior to 1998, that is, 1994. The nephew's date of birth is 1978. The niece's date of birth is 1981: Exhibit R1, page 170. At the date of separation of their parents, the children were said by their mother to be aged 12 and 9 which was in about 1990. The incident of alleged abuse clearly then predates 1990.
9. The applicant's nephew committed suicide on 24 April 2006. He was aged 27. About 1 week prior to his suicide he raised the pool incident with his sister.
10. The applicant's nephew disclosed to his friends prior to his death that his uncle, the applicant in the Tribunal, on more than one occasion perpetrated sexual abuse upon him.
11. The nephew's mother provided evidence to the investigator that she was told by her son and daughter about the incident in the pool directly after it had occurred. The mother recalls that her daughter told her the applicant was rubbing himself up against the nephew. The mother told them if it happened again she would call them out of the pool. The children's father told the children to get back into the pool. The mother recalls the daughter coming back to her and saying that it was happening again, so she called to her son to come out of the pool. The mother recalls keeping her son away from the applicant during the rest of the visit. The mother recalls that her son didn't want to have anything to do with the applicant after this. The mother said she knew that her son was troubled by the incident in the pool: Exhibit R1, Tab 8, pages 95-96. This is consistent with her earlier report to the Administrator.
12. The mother told the investigator that her family moved in the late 1980's and bought a shop which they later sold and moved into a short-term rental house in which the swimming pool was located. The applicant visited the mother and the children at least once after the marriage had broken down, which was after they had moved from the house with the swimming pool. The mother reports that when the nephew heard that the applicant was coming to visit, the nephew went to his room and refused to come out. The applicant insisted on seeing the nephew who must have heard the conversation and he pushed the wooden flyscreen out of the window then jumped out the window. The mother did not let the applicant go into the nephew's room because she remembered the incident in the swimming pool at the home in which they lived prior to the breakdown of marriage: Exhibit R1 page 86.
13. The investigator who wrote the final report records that the applicant denied the swimming pool allegation completely. The applicant denied that he ever swam with the children. This denial was discounted due to a lack of credibility: Exhibit R1, Tab 8, page 97.
14. Significantly, the investigator for the report dated September 2007 discounted the applicant's denials as referred to in the preceding paragraph and also said, at Exhibit R1 page 101: "While it is possible that [the applicant] has blocked this from his memory for some reason, his complete and illogical denials cast him as a less than credible witness. His inability to accurately identify his encounters with family over the years and his lack of credibility also contribute to a heightened risk assessment for [the applicant]… [The applicant] is often placed in situations where trust and honesty are expected qualities, his inability to display these qualities throughout this investigation is of significant concern… [The nephew's friend/partner] clearly believes that [the nephew's] mental health deteriorated significantly and irrevocably following the encounter with [the applicant]… on Anzac Day 2005. In the year following this encounter [the nephew] experienced severe depression and withdrawal which ultimately resulted in his suicide on 26 April 2006. This pattern was also noticed by friends such as…, who had been an ongoing support for [the nephew] throughout his later life. While it is impossible to state that his suicide resulted from the abuse perpetrated by [the applicant], there is a clear connection between his encounter with [the applicant] and the onset of severe depression that would ultimately result in his suicide 12 months later."
15. In the applicant's record of interview dated 25 July 2006, Exhibit R1, pages 164-188, at page 168, the applicant stated that had not seen his nephew from 1987 until 2005. The applicant confirmed that he was at the same venue which his nephew identified in his discussions with his partner, friends and sister as the venue at which he saw the applicant on Anzac Day 2005. In his cross-examination in this Tribunal the applicant reiterated his belief that he had not seen his nephew for that period of time: Transcript 25/09/2014, pages 36-41. This is in clear contradiction to the statements made by the mother of the applicant's nephew.
16. The submission of the applicant's counsel correctly points out that no criminal charges were laid and that the allegation was found to be sustained on the civil standard. The religious organisation has accepted and continues to accept the validity of the sustained finding by the investigator who wrote the last report, according to the submissions on behalf of the applicant: Submissions 16/2/2015 at [12].
17. The applicant was notified to the Commissioner for Children and Young Persons as Category 1, or a Prohibited Person Level 1 Risk, on 11 January 2007 following the outcome of the first report. It is not clear from the evidence whether the classification was subsequently varied, changed, or not. The applicant was referred to what is called the Encompass Program which referral the applicant initially resisted by the applicant: Exhibit R1 page 213.
18. Notwithstanding the acceptance by the religious organisation that the allegation has been sustained, the applicant himself continues to deny the facts surrounding the pool incident and the finding of sexual misconduct with his nephew. The mother of the applicant's nephew and the niece were not required for cross-examination in the hearing in the Tribunal. The evidence they gave to the investigator remains unchallenged. The evidence they provided to the investigator was from their own direct knowledge and observations.
19. The applicant was confronted by this allegation in his record of interview conducted on 25 July 2006 and was cross-examined about this incident in the Tribunal. The applicant's answers indicate that rather than having no memory of such an incident in the pool, as he originally responded, there was a degree of improved memory which the applicant exhibited when talking to persons with whom he had a therapeutic relationship. The Transcript of the cross-examination of 25 September 2014 page 48 records the applicant's concession. The applicant's statutory declaration contained in Exhibit A1 at [4] merely records a denial of a sexual assault in the swimming pool.
20. The interviews of the mother and the sister, taken together with the other material collected, viewed in the light of the applicant's responses, adds weight to the assessment of the investigator in the last report. The Tribunal also finds on the balance of probabilities that the incident occurred. The allegations referred to as the pool incident are accepted as appropriately 'sustained', or valid.
21. It can generally be inferred from the fact that the applicant is represented in the Tribunal by counsel instructed by the applicant that the applicant accepts the finding of sexual misconduct which has been made and sustained, is accepted by his employer, even though he appears to contradict and denies the factual circumstances which lead to that conclusion, and indeed he denies the sustained allegation: see for comparison generally the judicial discussions in relation to entering a plea by a legal representative in criminal proceedings in Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202; R v Paauwe [1971] 2 NSWLR 235. This is an unusual feature of this matter.
22. The religious organisation has placed a high level of scrutiny upon the behaviour of the applicant since the allegations surfaced in 2006, because of the acceptance of the finding by the employer. The submissions on behalf of the applicant may accurately refer to "an extraordinary level of scrutiny": Submissions 16/2/2015 at [12]. For that to happen it must be considered by the applicant's employer that the sustained incident is serious. The applicant was also the subject of scrutiny prior to 2006.
23. The investigator for the report dated September 2007 recommended to the religious organisation, at Exhibit R1 page 103, that it: "…continue to manage the ongoing support requirements of those people who have been impacted upon most significantly by this investigation, namely the family and friends of [the deceased nephew]. Competent support and guidance provided to this group may assist to reduce the risks for adverse publicity and media attention to this matter."
24. There are other allegations which were investigated but found to be false or not sustained. A further allegation is that the applicant raped his nephew when the nephew was aged 6. Another allegation is that the applicant on more than one occasion while tucking the nephew into bed at night sexually abused and touched the nephew inappropriately. It was also alleged that the applicant sexually assaulted the niece when she was an infant. A further allegation was made that on an undisclosed date the applicant sexually assaulted a male cousin of the nephew to whom the allegations previously referred: see Exhibit R1 page 83 for the list of revised allegations. The male cousin of the nephew made his allegations in 2006 and in 2008. In Mr Webster's first report it is recorded that the male cousin did not proceed to provide evidence for his initial complaint and the second one made later, due to family pressure and concern for his grandmother's health: Exhibit R1, page 14. The Tribunal does not find it necessary to make findings concerning each of those allegations. The investigator found insufficient evidence to sustain the additional allegations. Furthermore, some of the incidents of alleged abuse are not specific but there was repeated mention of the pool and tucking into bed incidents. The investigator considered that there was significant circumstantial evidence to support the tucking into bed allegation: Exhibit R1, page 100.
25. The last of the reports in which the sustained allegation was identified considered that there were impediments to the original investigation process which impacted on the ability to make findings in the earlier reports. The earlier investigations did not have access to important witnesses such as the applicant's former sister-in-law, the mother of the children alleged to have been abused, and the applicant's niece. There was also then no confirmed evidence as to the premises described by the nephew as the premises in which these events occurred. There is now and it contradicts the stated memory, or lack of memory, of the applicant. The identified impediments were addressed in the last investigation.
26. When the applicant undertook a neuropsychological assessment on 3 March 2008: "…he became teary and anguished as he recalled the injustices dealt by the superiors in his life… He reported feelings of disappointment at perceived injustice by his current superior for not believing his innocence despite little evidence supporting allegations of sexual abuse": Exhibit R1 page 143.
27. The result of that neuropsychological assessment indicates that the applicant is functioning within the high average range of intelligence and his memory functioning overall was within the high average to superior range. There was no evidence of neuropsychological dysfunction: Exhibit R1 page 145.
28. The applicant entered into the Encompass Treatment "Banksia" Program on 11 March 2008 and completed it on 19 June 2008. On 11 August 2008 the applicant commenced to see Dr Tony Robinson. On 10 May 2010 a further risk assessment of the applicant was undertaken by Dr Tony Robinson: Exhibit R1 page 104.
29. In December 2008 a risk management plan was established and extended in December 2009 to restrict the applicant's work. A risk management supervisor was appointed. The plan required the applicant to: 1. participate in ongoing supervision with a supervisor on a monthly basis; 2. establish and use of a support group; 3. continue counselling and medical supervision; 4. be supervised by an on-site supervisor at his place of work; 5. have no unsupervised contact with children or young people; 6. not to engage in work in schools nor enter school grounds: see Exhibit R1, page 14.
30. Following the recommendations of the investigator in the September 2007 report the applicant undertook therapeutic interventions and restricted duties with his employer. Despite restrictions placed upon his employment the applicant had 'accidental' unsupervised contact with children: Exhibit R1, page 14; see also the later 'accidental' breaches ibid., pages 139-142.

Brief additional history in the context of the matters identified

1. The earlier history of the applicant is contained in both the submissions and the aide memoire Exhibit A4. The applicant gave oral evidence of the history. The applicant gave evidence that he was a victim of child sexual abuse by a male neighbour when the applicant was aged approximately 4 years old. The applicant said that the neighbour asked the applicant to masturbate him, which he did as a game. The applicant stated to Dr Robinson that he introduced his older brothers to the sexual play that the adult neighbour had initiated with him: Exhibit R1, page 120. The applicant entered into mutual masturbation, firstly with his older brothers and then later with his younger brothers. The applicant was discovered by his mother engaging in mutual masturbation with one of his brothers. The applicant told Dr Robinson that the younger brother was 7 years his junior, that his mother was shocked by the behaviour and quite shaming towards him: Exhibit R1 page 120. The applicant later enlisted in the Australian Navy, aged 16. About 6 years later the applicant became a member of a religious organisation where he was subject to sexual misconduct at the instigation of his superiors in that organisation.
2. About 4 years after that, the applicant is alleged to have assaulted his nephew in the swimming pool.
3. While the applicant was in the religious organisation he was the subject of a complaint by another member because, as described in the submissions on behalf the applicant, he was over friendly, physically touching, partook in intimate touching, partook in intimate talk, had wrestled with and bit the complainant. The applicant made an apology to the complainant after the intervention of a formal complaint body.
4. The record and report into the complaint by the member of that organisation described the behaviour of the applicant as "sexual abuse in the form of intimate touching, massaging, inappropriate talk, intimate wrestling, and on one occasion biting": Exhibit R1, page 53. In cross examination the applicant agreed that he apologised to the complainant for his conduct: Transcript 25/9/2014, page 18. In a report dated 22 April 2008 co-authored by Dr Tony Robinson, Exhibit R1 page 118, the description of that conduct is as follows: "[The applicant] had identified himself as a victim of significant and severe sexual abuse by the head of [the sect within the religious organisation]. Another victim had also complained about a range of experiences in [the organisation] which left him feeling traumatised. One traumatising incident involved [the applicant]. It was alleged that [the applicant] and the complainant wrestled in a barn in their underpants and that the complainant found the situation ambiguous and sexually intrusive. By reports, [the applicant] responded honestly to the complaint and made an appropriate apology to the complainant."
5. In about 1998 the applicant became a member of a different branch of the same religious organisation undertaking training in their shared religion, where he partook in consensual but furtive homosexual sex with another member of that branch of the organisation. The applicant was also the subject of another complaint from an adult that he hugged that person in a sexual way. The complaint was investigated but no sanctions were imposed.
6. The complaint by the mother of the applicant's nephew was made as recorded in the letter referred to previously in this decision, at about the same time. This complaint related to the nephew who committed suicide in 2006.
7. While the applicant was a member of that branch of the religious organisation which he entered into in 1998, he was involved in furtive group male sexual activity involving a person who was also described as the applicant's partner.
8. The applicant completed his training and commenced working full time for the religious organisation. The applicant was then involved in an incident with a 17-year-old male in 2004. The applicant attended a dinner party where this male was present. Due to the applicant's behaviour, this young male sent a text message to the applicant stating that he did not wish to see the applicant anymore. The applicant then took upon himself to visit the young male's workplace. The applicant was upset, the young male reiterated his desire to never see the applicant again and refused to shake hands with the applicant.
9. The applicant's nephew committed suicide in 2006 after making allegations that the applicant had sexually abused him. The applicant's employer notified the police. The applicant was stood down from his usual duties. The investigation, by Eccleston Consultancy and Investigations, independent of the police investigation, was commissioned and a report made subsequently to the NSW Ombudsman. As detailed earlier in this decision the ombudsman requested a further investigation. The subsequent investigation found one of the allegations sustained, which was the pool incident referred to earlier involving the applicant's nephew.
10. A person who was an instructing agent in the hearing in the Tribunal, who has had relevant experience in the child protection area, assumed case management of the applicant in the religious organisation in November 2009. In January 2011 the applicant was apparently appointed to a more public position within the religious organisation. On 5 April 2012 the applicant was provided a job which he wanted within the organisation subject to him entering into an agreement which was ratified on 8 May 2012. In January 2013 the applicant commenced treatment with a counsellor Mr Martin, after his treatment by Dr Tony Robinson ceased in 2012.
11. In summary, the matter that caused a refusal of a clearance or imposition of an interim bar is very serious. The consequences of that conduct have been particularly tragic, ultimately resulting in the suicide of the applicant's nephew. There is a history of additional matters which add some further weight to the seriousness with which the applicant's conduct is considered.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

1. There is no index offence. The applicant has not been charged with any criminal offence arising from his conduct.
2. The primary sustained matter occurred prior to 1990, and most probably occurred in the 1980s and as best can be determined by the Tribunal based upon the different accounts, the pool incident occurred approximately in 1989.
3. Mr Webster prepared a report dated 1 April 2012 in which he considered the history of the applicant since the conduct with his nephew in the pool and obtained from a file review under the heading "Pattern of concerns about the sexual behaviour of [the applicant]": Exhibit R1 page 15.
4. In that summary Mr Webster refers to the allegations of homosexual activity between the applicant and another initiate in a sauna. This allegation was investigated and the applicant was said to have been 'cleared'. There was also an allegation that the applicant had abused a child while he was on holiday with the parents and their child in 1998. The mother of that child (not related to the applicant as it appears from the material considered) refused to make a statement to the investigating body after she made her complaint.
5. The other matters which are referred to under the previous heading are repeated in that history and so they are not repeated under this heading.
6. There is some further detail provided about one of the incidents. The employer of the 17-year-old male who attended a dinner party with the applicant in about 2004 was considered a friend of the applicant and her opinion of him changed as a result of this behaviour towards the young male, to whom she felt some responsibility for because he was her employee. The employer stated that she had been warned by a former friend of the applicant that he was not to be trusted near her 15-year-old son and that former friend insisted that the applicant not be permitted in her house. The employer was informed that the applicant had "got a young [religious adherent] drunk and had oral sex with him without his consent." Exhibit R1, pages 16, 36. The victim of this alleged assault was rumoured to have attempted suicide. Another person who spoke about this matter also confided to her that the applicant had "tried to rape" him as well when they have been drinking together: Exhibit R1, page 36. The employer had initially dismissed her friend's claims about the applicant. A few days after the dinner party the applicant came to the place of employment of the employer and the young male with 2 bottles of wine, one for her and one for the young male. The applicant invited the young male to go with him to the movies and then subsequently on a dinner date. The employer explained that within 5 minutes of the negative response by the young male to the text, the applicant burst through the door and insisted on an explanation Exhibit R1, page 38. The young male explained that the applicant's attentions were unwanted and made him feel very uncomfortable. He refused to shake the applicant's hand: Exhibit R1, page 16. When the applicant was cross-examined about this matter in the Tribunal he could not adequately explain why he preferred to confront the young male physically rather than respond to him by telephone or text.
7. The employer of the young male when she was interviewed said that she formed the belief the applicant is an intimidating person and that she fears him. She was also fearful of the applicant's family. She is reported to have said that the applicant "was not a very nice man and shouldn't be in [the religious organisation]." Exhibit R1, page 16.
8. The applicant is recorded to have been "fraternising with young kitchen staff" in a facility where the religious organisation had some involvement. It was also recorded that the applicant "had given one young man a bottle of bourbon for his birthday." The applicant confronted the informant of that information, who was in a managerial position, causing her to later describe the applicant's behaviour as "intimidating and forceful" in file notes of July and August 2008 Exhibit R1, page 17. In his oral evidence the applicant agreed that it was in fact the young person's eighteenth birthday, even though the applicant said he believed was the person's twenty first birthday: Transcript 25/9/2014, page 56. Other documentary evidence would seem to indicate that nobody below the age of 18 was knowingly employed at that facility during the "calendar year": Exhibit A1, Tab 4 par [25].
9. One of the witnesses who gave oral evidence in support of the applicant on 19 January 2015 is quoted in Gerard Webster's first report. A letter the witness wrote in support of the applicant described the applicant as a "good man" victimised by the systemic response to child abuse allegations. He is recorded to have written: "the allegations against [the applicant] were the weakest [he had] ever encountered and any concerns about his risk to the community were in [his] opinion, grossly exaggerate (sic) from the outset… the allegations against him were not just fake it was probably contaminated by other agendas and undoubtedly lacked veracity." Exhibit R1, page 17.
10. That witness described himself as part of a support group for the applicant and had sent the applicant a 'good luck' text for the hearing. The comments made by the witness in relation to the substantiated allegation do not show an objective capacity on the part of that witness.
11. One of the other witnesses who gave oral evidence on 20 January 2015 in support of the applicant is also quoted by Gerard Webster in his first report. That witness, who is a qualified psychologist, and another person involved in the religious organisation: "expressed their concerns about [the applicant's] excessive drinking. As a result of his 'acting out sexually' he was referred to Encompass for vocational assessment in 1999." Exhibit R1, page 17.
12. That psychologist witness is now a very good friend of the applicant who is described in the submissions on behalf of the applicant as a companion person providing a supportive relationship with discussions focusing on spiritual concerns, psychological concerns and emotional concerns. That witness also sent a 'good luck' text to the applicant for the hearing in the Tribunal. Her evidence is also not sufficiently objective to place any significant weight upon her conclusion that the applicant is trustworthy and by implication not a risk to children.
13. The applicant also relied upon a witness who is a principal of a school and has known the applicant for 10 years. The witness was a member of the same religious organisation prior to his current role. The applicant and he clearly have a good relationship and he just didn't believe the applicant would behave abusively with his nephew, despite his knowledge that the allegation has been sustained. It is good that the applicant has such supportive friends. Unfortunately, their evidence does not carry any significant weight because of their subjective factors.
14. The applicant participated in the Encompass inpatient program in 2008 to obtain assistance in relation to psychological issues. In Mr Webster's report revised on 13 August 2014, it is recorded that the program shutdown within 5 months of the applicant commencing his inpatient treatment. The recorded dates are different because the applicant entered the program on 11 March 2008 and completed the program on 19 June 2008 which is just over 3 months. The applicant stated to Mr Webster that he was pleased that the shutdown brought the treatment to an end, particularly because it allowed him to return to his hometown: Exhibit A1, Tab 3, page 22. The applicant, after the Encompass program, then continued seeing Dr Tony Robinson, psychologist, on 11 August 2008 this time as an outpatient and the applicant considers that he has improved in dealing with his anxiety, impulsivity, and feelings of being emotionally overwhelmed: ibid.
15. The initial diagnosis upon admission to the Encompass program was revised by time of discharge from the program. The applicant's consultant psychiatrist was at this time Dr Canaris. The applicant was described by Dr Canaris in a report dated 6 March 2008, Exhibit R1, page 51, as: "All in all, we seem to have here a man with a very troubling sexual history, probable evidence of paraphilia, and indisputable lack of integration of his sexuality in the setting of a submissive nature and, if his obesity is anything to go by, evidence of compulsivity in other areas of his life."
16. The discharge summary from the Encompass program records, at Exhibit R1 page 655: "Axis 1: F52.9 Psychosexual Disorder: in early remission F41.1 Generalised Anxiety Disorder F10.20 Alcohol Dependence in sustained partial remission; Axis II: F60.9 Personality Disorder NOS-dependent and histrionic features."
17. The initial diagnosis was, at Exhibit R1 page 652: "Axis I: F52.9 Psychosexual Disorder: unintegrated and compulsive features R/O F65.4 Pedophilia, same sex attraction, non-exclusive type F41.1 Generalised Anxiety Disorder F10.20 Alcohol Dependence in sustained partial remission; Axis II: F60.9 Personality Disorder NOS-dependent and histrionic features Axis III: Morbid obesity Investigate cardio-health for fitness to begin exercise No immunity to hepatitis B History of prior alcohol abuse Medication for hypertension Family history of obesity and diabetes"
18. There is no recent psychiatric assessment of the applicant provided to the Tribunal.
19. It is also recorded in the last sentence on the penultimate page of the Discharge Summary, ibid.,: "[The applicant] has also identified that he should not work with children as a way of making amends to his victims and a desire to make sure that there would not be an opportunity for future victimisation."
20. The Discharge Summary was written by Dr Tony Robinson, Clinical Psychologist who later provided clarification of that sentence quoted in the previous paragraph. Dr Robinson stated on 26 August 2014 that the Discharge Summary was inaccurate because the applicant never admitted that he perpetrated any incidents of child sexual abuse, and the decision of the applicant at that time was considered prudent and respectful to his relatives who had made the allegations, which allegations he did not accept as true: Exhibit A2.
21. The applicant, however, has admitted intrafamilial child sexual abuse with his siblings. The denials by the applicant clearly extends only to child sexual abuse during the time that the applicant has been an adult. The discharge summary does not refer to the intrafamilial child sexual activity or abuse perpetrated by the applicant as a child with the applicant's siblings. This activity was known but apparently minimised as part of "normal" development.
22. The disclosure in 1999 to Dr Robinson of that intrafamilial childhood sexual activity with his siblings is described as: "he reported having started to touch his brothers' penises and this having become a mutual practice between them." Exhibit R1, page 580.
23. The assistance given to the applicant by Dr Robinson is described in Gerard Webster's 2014 report as treatment of the applicant as "a denier", or as it is more colloquially known as 'denier's therapy': Exhibit A1 page 23. This is explained in the next sentence as follows: "…the sexual abuse perpetration curriculum was covered in a way that did not assume that he had committed an offence but rather explored the same material in such a way that focused on protecting himself from further allegations."

The age of the person at the time the offences or matters occurred

1. The applicant was born in 1958. At the time of the sustained complaint the applicant was aged approximately 31. The other matters which are part of the applicant's "very troubling sexual history" (per Dr Canaris) have occurred from the age of approximately 4 until 2008. Therefore the matters including those conveniently described as part of a 'psychosexual disorder' have been occurring during most of the applicant's life.

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

1. It was alleged that the applicant had sexually abused his nephew when his nephew was aged 6. The nephew was clearly a vulnerable age when this incident occurred as alleged.
2. The substantiated complaint occurred when the nephew was approximately 11 years old. At that time the nephew was a vulnerable child. Subsequent events proved that his vulnerability was particularly heightened because of the relationship between the applicant and the nephew, and the position held by the applicant within the religious organisation to which the applicant belonged. There was an inequality of position and power between the applicant and his victim, his nephew. The consequences of his vulnerability were tragic.
3. The applicant was discovered by his mother engaging in mutual masturbation with one of his brothers. The applicant told Dr Robinson that the younger brother was 7 years his junior.
4. There have been other complaints in relation to another nephew and the child of some people with whom the applicant went on holiday. Both those children were also vulnerable.
5. The other complainants were aged between 17 and young adults. Those people felt intimidated by the applicant's behaviour. They were also in a position of vulnerability.

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

1. There was a significant difference in age between the applicant and his nephew. The age difference was about 20 years.
2. The applicant was discovered by his mother engaging in mutual masturbation with one of his brothers who the applicant reported was 7 years his junior. At that time the applicant was most probably aged in his early teens because he joined the Navy when he was approximately 16.
3. The applicant has been attracted to a position of authority and status within the religious organisation to which he belongs. The applicant has utilised his position to establish and enhance connections between the complainants and himself. The effect upon his nephew of the applicant's status within the organisation was profound.

Whether the person knew, or could reasonably have known, that the victim was a child

1. The applicant's nephew was a child and the applicant knew that he was a child.
2. The applicant's brothers were children at the time of the sexual abuse between them.

The Person's present age

1. The applicant is currently aged approximately 57.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

1. The applicant does not have a criminal record. The applicant does have a history of a "very troubling sexual history" and a 'psychosexual disorder' as referred to earlier in these reasons. These matters are serious in the context of these proceedings.
2. The applicant admits to having lost his driver's licence on one occasion due to the accumulation of points for various speeding offences.

Likelihood of any repetition by the person of the conduct and the impact on children of any such repetition

1. It is of note that Gerard Webster's reports are addressed to the person described in these reasons as an agent, but also in his capacity as manager of the risk in relation to the applicant's involvement with children. During the period of the adjournment of the Tribunal proceedings a further report was obtained from Gerard Webster dated 17 December 2014: Exhibit A5. That report was filed while the agent/manager of risk was acting on behalf of the applicant in the Tribunal proceedings, instructing counsel who appeared for the applicant and sitting with counsel, although he is not a solicitor. This is not an adverse comment upon the role undertaken by the agent, but merely an observation to place in context the role which he fulfilled during the course of these proceedings. Mr Webster was asked 5 questions in a letter. The letter was written by the agent who also quite properly provided to Mr Webster a copy of the NCAT Expert Witness Code of Conduct in accordance with NCAT Procedural Direction 3. Mr Webster acknowledged that he had read the Expert Witness Code of Conduct and agreed to be bound by it. Mr Webster was cross-examined in the Tribunal on 20 January 2015.
2. Mr Webster agreed that a person cannot be assessed as being no risk to children because every person poses a risk. Mr Webster also agreed with the statements concerning risk assessment referred to with approval by the Tribunal in BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 at [67]. The comment is as follows: "Dr Collins draws attention to the caution which should be exercised in respect of the practice of risk assessment. Relevantly, Dr Collins states in Exhibit A3 at [39]: 'Whilst risk assessment can be beneficial in providing important information about risk management, the practice in and of itself has limitations. Firstly, the base rate of sexual offender recidivism is low, which hence renders the prediction of such an uncommon behaviour as difficult. Secondly, risk assessment actuarial tools are normed upon groups of individuals and hence it is always unclear how any one individual will perform relative to the group that was studied. Furthermore, risk assessments are time-limited and only as good as the information on which they are based. They can change as new information becomes available, and all risk assessments have an appreciable level of error built into them. Risk assessments help to remove less clinical factors such as "gut feeling" and prejudice that can influence judgment. Although research typically highlights the superiority of structured risk assessment over unstructured clinical judgment as aforementioned, the evidence supporting such assessments is moderately valid only. Hence, decisions about risk are best made with multiple sources of data available, in which a formal risk assessment is only one such source of data (for a more detailed discussion see Mullen & Ogloff, 2009).' (References omitted)"
3. Mr Webster utilised a number psychological tools to assist in his assessment of the applicant. There were earlier assessments of the applicant which also utilised the same or similar psychological tools. One result of those tools' assessment of the applicant was stated by Mr Webster to be that: "…careful evaluation is required to obtain information that does not rely on [the applicant's] cooperation through self-report." Exhibit R1 page 25.
4. This is because utility of the applicant's responses was called into question and likely to represent an underestimate of his problems: Mr Webster preferred to then rely upon the Rorschach in 2012.
5. The results of that Rorschach testing are recorded on just over 6 pages of Mr Webster's first report. The main findings of the profile generated by the Rorschach, at Exhibit R1 page 25, are that the applicant: "… has a serious affective problem. Endogenous depression, major affect disorder, and dysthymia should be considered, but findings from this test alone do not indicate the overt behaviour required for diagnostic classification. [The applicant] has a serious deficit of interpersonal resources to handle social stress. His psychological controls and functioning are either decompensated from chronic stress, or are not maturely developed. He is screening out aspects of his world, perceiving it as less complex and thereby more manageable. He has an inflated sense of self-worth. Many psychological operations are used to protect and defend his psychological self. [The applicant] often uses a passive style of coping with problems. Problems with interpersonal relationships or cognition are evident. Testing suggests that there is strong emotional distress or excessive caution about emotionality. Considerable pessimistic or negative thinking is present. There may be problems involving interpersonal closeness."
6. The Multiphasic Sex Inventory (MSI-II) was administered to the applicant by Mr Webster. This psychological tool is vulnerable to impression management by the person taking the test, unlike the Rorschach. The applicant's test results and test taking behaviours suggested to Mr Webster that "… there may be more to know about him." Exhibit R1 page 32. However the results are summarised by Mr Webster as follows, at Exhibit R1 page 32: "[The applicant] 1) acknowledges engaging in some level of inappropriate sexual behaviour or misconduct; 2) does not take accountability for his sexual behaviours; 3) has emotional problems (feelings of insecurity in social/sexual interactions involving age-appropriate females); and 4) does not have adequate knowledge of sexual anatomy and physiology."
7. Mr Webster assessed the risk posed by the applicant in terms of the Static-99 instrument, which is an actuarial method for identifying recidivism risk of an individual offender based on group estimates using a sample size of 1,301 sexual offenders. Mr Webster states that the offender's risk may be higher or lower than the probabilities estimated using this instrument depending on dynamic risk factors: Exhibit R1 page 33. The applicant has not been convicted of any sexual offence. Indeed, the applicant does not admit any sexual offence. Using this tool the applicant's risk of recidivism is assessed as "low".
8. Mr Webster supported managing the ongoing risk posed by the applicant by maintaining the restrictions on the applicant's sole access to children and, in order to address his personality vulnerabilities, to undertake psychotherapy twice a week for a minimum of 2 years: Exhibit R1, page 34. Mr Webster was not convinced that the applicant was able to manage his sexual impulses in relation to young males above the age of consent (i.e. above 16 years old): Exhibit R1, page 35.
9. The report by Mr Webster dated 13 August 2014 is part of Exhibit A4 at Tab 3. Mr Webster reports that he was provided documentation essentially of a supportive nature and tone regarding the applicant's continued working in the religious organisation subject to a number of conditions including that he not be alone with children. Mr Webster considered the conditions upon which the applicant agreed to be employed after 2012 were "to further reduce the assessed risk of professional boundary violations and sexual abuse, which I had assessed as 'low'." Exhibit A4, Tab 3 page 2. Mr Webster saw the applicant in his professional rooms on 11 July 2014. They had previously met for the purposes of the report in 2012. Mr Webster did not see the applicant again before providing his report dated 17 December 2014.
10. In his report dated 13 August 2014 Mr Webster refers to the Sexual Violence Risk-20 (SVR-20) protocol which he utilised for the assessment review. According to that protocol there are 20 risk factors which have been identified within the evidence-based research to predict reoffending. In the applicant's situation there is one static factor which is his history of having been sexually abused and two dynamic factors. The two dynamic factors are firstly, employment problems which are attributed by Mr Webster to the Children's Guardian's decision to impose a bar, and secondly a denial by the applicant of sexual offences.
11. Mr Webster's opinion is that the denial factor is a controversial claim. Clearly, Mr Webster is referring to substantiated abuse of the applicant's nephew, and the denial by the applicant that this event occurred. The applicant has undertaken denier's therapy. It is clear from the applicant's reported history that he is not only a victim of child sexual abuse, but has perpetrated such abuse in an intrafamilial context. The applicant does not deny those matters which relate to his brothers. The applicant told Mr Webster that the behaviour with his siblings continued for approximately 3 years and stopped when the brothers matured and began to go out with girls. The applicant previously apologised for behaviour which was considered sexual assault (see paragraph 94).
12. It will be recalled that the applicant was described by Dr Canaris in a report dated 6 March 2008, Exhibit R1 page 51, as having a "very troubling sexual history, probable evidence of paraphilia, and indisputable lack of integration of his sexuality… [with] evidence of compulsivity in other areas of his life."
13. The discharge summary in June 2008 at Exhibit R1 page 655 identifies that the applicant suffers from a number of disorders including both Psychosexual and Generalised Anxiety Disorders. There is also diagnosed a Personality Disorder (Not Otherwise Specified) involving histrionic and dependent features. The applicant was also assessed to be alcohol dependent but in partial remission. It is a fact that the applicant had already received individual psychotherapy over a 12 month period in 2000 from Dr David Watson in relation to his alcohol abuse issues: Exhibit R1 page 18.
14. The treatment which the applicant has received in the form of counselling appears to be a continuation or extension of the denier's therapy commenced in 2008. This has had important positive effects upon the applicant's personal development.
15. The evidence is that the applicant continues to consume alcohol, but in moderation according to the applicant. The applicant says that he only consumes alcohol in the presence of others.
16. The applicant claims to be sexually celibate and told Mr Webster that he wishes to observe his promise of sexual celibacy. The applicant also informed Mr Webster that he occasionally masturbates and believes this is not burdensome.
17. The applicant also told Mr Webster on 11 July 2014 at Exhibit A1 tab 3 page 4: "…that he had become more comfortable about his sexual attraction to adult males and was more open about this…. [The applicant] acknowledged that he continues to be attracted to women also…. [The applicant] stated he is typically attracted to men in their early to mid-20s but conceded that he would find a well-built 16-year-old to also be attractive. He hastened to add that he would experience such attraction fleetingly and would not seek sexual contact. He stated that he feels comfortable in the company of teenagers but now clearly recognises the wisdom of having parents or other adults present when he is in contact with them."
18. Despite the warning that evaluation of the applicant should not rely entirely upon the applicant's self-report contained in his earlier report, Mr Webster appears to accept, on face value, statements made by the applicant. Those statements do not offer reassurance that the applicant does not pose a risk to persons under the age of 18.
19. The applicant states in his Statutory Declaration what he has gained from the therapy he has undertaken, in paragraphs [23]-[30], Exhibit A1, Tab 1. The applicant believes, in summary, that he has become more self-reflective, more sophisticated and aware of his own feelings, more able to put safeguards in place to keep himself in safe situations at all times.
20. There has not been any more recent psychiatric, psychological testing or assessment of the applicant provided to the Tribunal. The psychological assessments which have been placed before the Tribunal were undertaken in a specific context, but have assisted an exploration of the issues concerning the likelihood of any repetition of conduct of the applicant. The discharge summary from the Encompass program remains disconcerting in the assessment of the psychiatric diagnoses then applicable to the applicant.
21. Mr Webster has provided his brief assessment dated 17 December 2014 in response to specific questions which invited him to provide an answer beyond his capacity as an expert: Exhibit A5. In that assessment Mr Webster is clearly of the opinion that the applicant "no longer needs ongoing psychological counselling, treatment or support in relation to his condition…". It is difficult to reconcile that opinion with Mr Webster's and others' previous assessments of the applicant and the basis for that opinion is not clearly established.
22. The Tribunal accepts that the religious organisation has attempted to mitigate any risk posed by the applicant to children. The measures which have been put in place acknowledged that the applicant might cause significant harm to children if his behaviour exposed children to abuse. There were some difficulties enforcing those conditions and admitted breaches.
23. It is apparent that the behaviour engaged in by the applicant was beyond reasonable community norms. The behaviour appears part of a pattern of offensive behaviour including at least one form of paraphilia (Frotteurism), but has not been acknowledged as such by the applicant. The behaviour is not recent, but the behaviour, if repeated, would do significant harm to children. There has not been significant and positive, genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk but it appears that there has not even been a token expression of remorse for the behaviour of the applicant towards his nephew, nor does it appear to be likely given the denial of the abuse which has been supported by the type of therapy undertaken by the applicant.
24. Following the recommendations of the investigator in the September 2007 report the applicant undertook therapeutic interventions and restricted duties with his employer. Despite restrictions placed upon his employment the applicant had 'accidental' unsupervised contact with children: Exhibit R1, pages 14, 139-142.
25. Until there is an acknowledgement of the extent of the past abusive behaviour and sustained positive effort to address that behaviour, it is the assessment of the Tribunal that the likelihood of a repetition of that behaviour remains significant: cf. T v H and Ors [1985] NSWSC, Unreported 19/12/1985; SS v Department of Human Services (NSW) [2010] NSWDC 279 at [111]-[114].

Any information given by the applicant in, or in relation to, the application

1. The applicant has maintained a position of denial of the serious events which have affected his nephew and that part of his family.
2. There has been a significant amount of information provided to the Tribunal on behalf of the applicant. Much of that information has been collated by the employer of the applicant seemingly to address risk issues and to ensure the continued employment of the applicant in whatever capacity deemed appropriate by the employer. The religious organisation accepts the finding on the balance of probabilities that the applicant sexually abused his nephew.
3. The applicant has not made the same acknowledgement.
4. The applicant is often placed in situations where trust and honesty are expected qualities, but his inability to unequivocally display these qualities throughout the investigation, assessments and in these proceedings is of significant concern to the Tribunal.

Any other matters that the Children's Guardian considers necessary

1. There was extensive material filed on behalf Children's Guardian and it would appear there are no other matters which the Children's Guardian considers necessary.

Determination and conclusion

1. The applicant's conduct was serious and affected catastrophically a vulnerable child. There are other matters which are also very serious and concern the appropriateness of the applicant's behaviour and its sexual overtones towards young males. The impact of those matters upon the safety of children should be obvious. Children who were present at the times of those matters have been exposed to behaviour which constitutes child abuse. The effect of the applicant's behaviour upon the applicant's nephew was tragic.
2. The victims of the applicant's behaviour have been young males. There is a pattern of offensive behaviour.
3. The children the subject of the allegations are vulnerable children.
4. The applicant's test results and test taking behaviours suggested to Mr Webster that "… there may be more to know about him." Exhibit R1, page 32. The applicant, (in part because of his denial of any abusive behaviour, in part because of the type of assistance he has obtained has not really challenged his denial of abuse but accepted and worked with the denial), has not been completely frank with the provision of information which would assist with the complete assessment of risk despite it being arguably in his interests and also his obligation to do so. The applicant has not been frank with himself about the behaviours in which he has engaged with children. There has been extensive information provided to the Tribunal which was received, considered in full and remains subject to that observation: there is considered that there may be more to know about him.
5. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children. The behaviours in the past occurred in circumstances where the applicant was held in a position of trust and respect. The applicant has abused that position of trust and respect.
6. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance, as previously described in this decision. Even if conditions were imposed there is no guarantee that they would mitigate the risk posed by the applicant.
7. The evidence received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a real and appreciable risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
8. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children Check clearance.
9. The order of the Tribunal therefore is: 1. The decision of the Children's Guardian dated 15 May 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 2. The application for review of the decision of the Children's Guardian filed 2 June 2014 is otherwise 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: 07 May 2015