CHR v Children's Guardian

Relevant WWC legislative scheme

1. The WWC Act came into force on 15 June 2013. The objects of the Act are set out in section 3 as follows: "3 Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
2. Section 4 of the Act provides that the "safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration" in the operation of the Act.
3. The word "children" is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
4. Subsection 8(1) of the Act prohibits a person from engaging in "child-related work", unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
5. Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
6. Section 6 and 7 of the WWC Act broadly defines the term "child-related work". As we have noted the term includes transport service for children: see WWC Act, subsection 6(2)(l).
7. Part 3 of the WWC Act makes provision for making applications for a clearance and how the respondent is to determine them. Section 18 in this Part prescribes how the respondent is to determine an application for a clearance. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in schedule 2 of the WWC Act, or that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a "disqualified person" and the respondent must refuse that persons' application for a clearance. Such persons have a right to make an application to the Tribunal for an enabling order: see WWC Act, section 28. Where an application of this kind is made, subsection 28(7) of that Act places an onus on the applicant to rebut the statutory presumption that he/she poses a risk to the safety of children by reason of his/her schedule 2 conviction.
8. The applicant is not a "disqualified person."
9. Subsection 18(2) of the WWC Act provides that the respondent must grant a clearance to a person who is subject to a risk assessment unless the respondent is satisfied that the person poses a risk to the safety of children. Section 14 of the WWC Act provides that a person is subject to a risk assessment requirement if any of the matters specified in schedule 1 apply to that person. As we have noted the offences with which the applicant was charged in 1995 fall within schedule 1. Subsection 15(1) requires the respondent to conduct that risk assessment and subsection 15(4) sets out the matter the respondent may have regard to in conducting that assessment.
10. Part 4 of the WWC Act deals with reviews and appeals from decisions of the respondent in regard to an application for a clearance. As we have noted the applicant has made his application under subsection 27(1) of the Act. Subsection 27(4), provides that in review proceedings an applicant must fully disclose to the Tribunal any matters relevant to his/her application.
11. Subsection 30 (1) of the WWC Act sets out the factors the Tribunal must consider in determining an application made under Part 4 of the WWC At review application. That subsection relevantly provides: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of … any matters that caused a refusal of a clearance …, (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 … 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 … 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.
12. The above matters are similar to those the respondent may have regard to when undertaking a risk assessment under section 15 of the WWC Act.
13. Finally, the Tribunal cannot make an order granting a clearance that is subject to conditions. A clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].

Evidence before the Tribunal

1. In support of his application the applicant relied on the material he had provided during the course of the respondent's section 15 risk assessment. This included a statutory declaration he made on 10 June 2015 and a number of references he provided. In support of this application for review the applicant filed and served a report of Dr Christopher J Lennings, forensic psychologist, dated 19 March 2016. He also filed an affidavit on 29 April 2016, following the first hearing date. The applicant and Dr Lennings both gave oral evidence at the hearing and were cross-examined by counsel for the respondent.
2. The respondent relied on the following bundles of documents: 1. the section 58 documents, which included the material the applicant had provided and the material the respondent had received in response to requests that were made under section 31 of the WWC Act. Included in these responses were documents provided by the District Court, a copy of the Judgment of the NSW Court of Criminal Appeal, the Local Court concerning an assault charge of which the applicant was convicted in 1992, police event reports, the applicant's Apprehended Violence Order history, responses from the Department of Family and Community Services and responses from Corrective Services (which included a copy of the transcript of the committal hearing before the Local Court); 2. a bundle containing further documents provided by the Local Court in regard to convictions for offences of knowingly contravening a prohibition/restriction in an Apprehended Domestic Violence Order and further responses from the applicant's employer, State Transit Authority; 3. the transcript of the applicant's trial before the District Court; and 4. an updated print out of the applicant's criminal history.
3. Counsel for the applicant and the respondent also provided detailed written submissions.
4. At the commencement of the hearing on 20 April 2016, counsel for the applicant objected to the tender of the transcript of the 1997 hearing before the District Court, the statement of the applicant's step daughter in regard to those proceedings and specified paragraphs of the committal judges comments. Counsel submitted, on the basis of the principles enunciated in the decision of the NSW Court of Appeal in Commissioner for Children and Young People v FZ [2011] NSWCA 111, that in the absence of the respondent having the applicant's stepdaughter available for cross-examination or establishing that she was "unavailable", this material, in so far as it related to the allegations that were made by the applicant's stepdaughter should not be placed before the Tribunal.
5. During submissions, counsel for the respondent submitted that the evidence of the stepdaughter in the criminal proceedings was being placed before the Tribunal on the basis of the stepdaughter having made the allegations and not on the basis of the truth of their contents. With the consent of counsel for the respondent we accepted the evidence of the stepdaughter on a limited basis. We also noted that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013, subsection 38(2). We have dealt with this evidence in more detail below.

Consideration

1. Before we deal with the evidence and the matters we are required to have regard to, we note the word "risk" was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word "risk" as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "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."
2. The Tribunal has accepted the word "risk" in the WWC Act should be given the same meaning.
3. It is well accepted that in administrative review proceedings, neither party bears a burden of proof in establishing that the decision was, or was not, "the correct and preferable" decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]; BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]: "… [when] either party to such an application [i.e. a review application] raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge."
4. It is also accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23].
5. In BKE (supra) at [30], His Honour Justice Beech-Jones said, where there are allegations of sexual abuse by an applicant for a clearance, significant guidance as to the approach to be adopted when considering risk can be derived from the High Court's decision in M v M [1988] HCA 68; (1988) 166 CLR 69. His Honour went on to say at [33]: "... [it] may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
6. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.

(a) Seriousness of the matters that caused a refusal of the applicant's application for a clearance

1. The first matter for consideration in subs 30(1) of the WWC Act is the seriousness of matters with which the applicant was charged in 1995. The applicant has at all times denied the allegations contained in the charges.
2. The charges on which the applicant was indicted were described by the trial Judge as follows: "CHARGE: For that he [the applicant], between 5 September 1991 and 9 September 1991 at …, did have sexual intercourse with [name of step-daughter], a person then above the age of 10 years and under 16 years - namely of the age of 15 years and under his authority. … CHARGE: Further, that he, between 5 September 1991 and 9 September 1991 at …, did have sexual intercourse with [name of step-daughter], a person then above the age of 10 years and under 16 years - namely of the age of 15 years and under his authority. … CHARGE: Further, that he on or about 27 December 1991 at …, did assault [name of step-daughter], and at the time of that assault did commit an act of indecency upon her, she then being under [his] authority. … CHARGE: Further, that he on or about 27 December 1991 at …, did have sexual intercourse with [name of step-daughter] without the consent of [name of step-daughter], knowing that she was not consenting and that she was under [his] authority. …"
3. The applicant entered a plea of not guilty to each charge.
4. As can be seen from the terms of the charges, the alleged acts and omissions of the applicant were alleged to have occurred on two specific occasions. The first allegedly occurring sometime between 7 and 9 September 1991 when the applicant's then wife and mother of his stepdaughter (the mother) went on a ski holiday. The second allegedly occurring on 27 December 1991 while the mother was out celebrating her birthday with friends. The alleged offending in September was alleged to have involved acts of oral sexual intercourse and the alleged offending in December was alleged to be touching and rubbing the complainant's breasts and sexually penetrating her.
5. Three years later, on her 19th birthday, in October 1994, the applicant's stepdaughter made a complaint to NSW Police in regard to the allegations.
6. The evidence is that the applicant and the mother of his stepdaughter commenced living together in 1977. His stepdaughter was about 18 months of age at that time. In 1979 the applicant and the mother of his stepdaughter married. They had two children, a daughter born in 1980 and a son born in 1983. The evidence is that the applicant's stepdaughter always regarded the applicant to be her birth father, until she was about 14 years of age, when she was told otherwise.
7. The applicant and his wife separated in early 1992, after his wife left the matrimonial home. The applicant's children and his stepdaughter went to live with their mother after the separation. However, the applicant's daughter returned to live with him. Despite the separation the children, including his stepdaughter, continued to spend time with the applicant at the family home and often stayed over on three to four nights a week.
8. In her evidence before the District Court, the applicant's stepdaughter alleged that from the time she was 12 years the applicant started touching her , playing an lifting her shirt and taking it off. She alleged he would do this while playing games. She alleged that later he started to feel her vagina and sucked on her breasts and gave her oral sex. The respondent noted that these allegations were characterised in the criminal proceedings as evidence of a "guilty passion", but could equally be described as grooming behaviours and conduct designed to blur appropriate boundaries between the applicant and his stepdaughter.
9. The applicant's stepdaughter also alleged that the applicant would engage in such conduct after he had been drinking all day. She alleged they usually had people over or barbeques on a weekend and the applicant would be drinking socially all day.
10. The applicant gave evidence at his trial and was cross-examined by the crown prosecutor. He denied the allegations the subject of the charges and denied he had at any time inappropriately touched his stepdaughter at any time. We also note the evidence of the applicant's son at the trial. His account of what occurred in September 1991, when his mother was away on a ski trip conflicted with that of the applicant's stepdaughter.
11. The applicant continues to deny he acted inappropriately towards his stepdaughter and asserts they were fabricated.
12. There is no dispute that the allegations made by the applicant's stepdaughter were extremely serious if they were true. The allegations as we have noted included inappropriate conduct by the applicant prior to the alleged offending. This alleged inappropriate conduct was alleged to have occurred over some time.
13. On appeal, the Court of Criminal Appeal quashed the convictions and acquitted the applicant of the charges. The Court summarised its findings as follows: "Making every allowance for the benefit which the jury had in seeing and hearing the witnesses I am persuaded that the jury ought to have had a reasonable doubt as to the guilt of the appellant. I have such a doubt. I proceed on the basis of the evidence which was admissible. My reasons include: (a) The complainant's evidence gave the Trial Judge the feeling that her evidence was imagined or invented; (b) There was a lengthy delay in making a complaint. It was made over three years since the first incident and about two and a half years after the appellant and the complainant's mother separated on 1 March 1992; (c) Despite the alleged incidents and the complainant living with her mother, the complainant continued to come and stay with the appellant, sometimes alone and sometimes with the two younger children. She also used his car in her pizza deliveries; (d) Relations became bitter and hostile between the appellant and the complainant after the incident in January 1994 on the appellant's birthday. They became further embittered when she did not have his car repaired properly when she damaged it. In late June 1994 he sued her in the Local Court; (e) Relations between the appellant and the complainant became even more hostile when he did not allow the two younger children to join her for her 19th birthday. She accused him of ruining her birthday and her previous birthday. She went to the police and made allegations of sexual misconduct by the appellant; (f) Relations between the appellant and the complainant's mother also became embittered and hostile from at least 1991. There were Family Court proceedings. That bitterness gradually increased and came to a head on 16 October 1994, the night of the complainant's 19th birthday, and continued thereafter; (g) The evidence of the son that whenever his mother went away overnight he and his sister slept in the applicant's bed. The evidence of the general practice was strong. The son also said that this was the position on the night in question. This evidence was noteworthy because the son was living with the complainant's mother; (h) The appellant's evidence on oath in denial did not appear to be seriously shaken. The guilty verdict is properly explained by the lack of balance in the Summing Up, the exclusion of [Mr A's] evidence and the deficient directions. There was more than a passing suggestion at the trial that the mother was playing, or attempting to play, an active role in influencing the evidence being adduced. This applied particularly to her son's evidence. The verdicts are unsafe and unsatisfactory. There is at least a reasonable possibility that an innocent man has been wrongly convicted."
14. The Court of Criminal Appeal also noted the following remarks by the trial Judge when sentencing the applicant following the jury verdict of guilty: "…. the Complainant's evidence gave me the feeling that it was imagined or invented, particularly as she did not complain until some years later, and particularly as she may have had a real or imagined motive for her complaints."
15. In his evidence, which was not disputed, the applicant explained his marriage broke down in 1991 and resulted in very acrimonious family law proceeding in 1992 and 1993. We understand the applicant's wife was granted custody of the children of the marriage and he was granted access.
16. In 1993, the applicant's stepdaughter was employed delivering take away food for a fast food chain. The applicant allowed her to use his car for this purpose. During this year, his stepdaughter was involved in an accident while driving his car. The car was damaged and when his stepdaughter and her mother failed to have it repaired to the applicant's satisfaction, the applicant commenced proceedings against his stepdaughter in the Local Court, in June 1994. The amount claimed was $282.00. However, ultimately, arrangements were made whereby his stepdaughter paid him the balance of what was owed.
17. In January 1994, prior to the Local Court proceedings, the applicant and his stepdaughter were involved in another altercation when his stepdaughter arrived at 10pm on the evening of his pre-arranged birthday celebrations. The applicant was angry and told his stepdaughter that she had a hide turning up at that time of the night. He told her to get the rest of her stuff from the bedroom and that he did not want to see her again. The applicant's stepdaughter was upset - she took her belongings and left.
18. In October 1994, a further altercation arose between the applicant and his stepdaughter. This altercation related to his stepdaughter's 19th birthday celebrations that year. The birthday celebrations were planned for the Sunday evening, which was the actual day of his stepdaughter's birthday. We understand from the evidence before the District Court, the applicant's former wife went to pick up the children from the applicant's home that evening and the applicant refused to let the children go. His former wife went to police, but the children had been delivered to the restaurant in the meantime. The altercation between the applicant and his stepdaughter occurred later that evening when his stepdaughter returned her younger sister to the applicant's home. During the altercation the applicant's stepdaughter is alleged to have said this was the second birthday he had "fucked up" on her and that he would pay for this. It was that evening, after the altercation and after meeting with her mother at the police station that the applicant's stepdaughter disclosed the allegations to her mother when they got home. That evening, the applicant's stepdaughter and her mother attended the local police station and made the complaint that gave rise to the charges being laid against the applicant.
19. In his evidence before the Tribunal, the applicant said he had refused to allow his son and daughter to attend that evening because it was the Sunday before school and it was the weekend he was to have access to the children.
20. Counsel for the applicant contended that, in effect, the decision of the Court of Criminal Appeal meant that the events alleged by the applicant's stepdaughter did not occur. In our view, the decision of the Court of Criminal Appeal does not go so far. What the Court of Criminal Appeal found was that the trial Judge erred when he: 1. rejected the evidence of Mr A who was to give evidence in support of the applicant's case; 2. erred in allowing the applicant's wife to lead evidence in reply; 3. failed to direct the jury adequately and erred in his directions in relation to assessment of witnesses and in particular the applicant and his stepdaughter; and 4. failed to put adequately the defence case to the jury in his summing up.
21. It was on this basis that the Court of Criminal Appeal found that the jury ought to have had a reasonable doubt as to the guilt of the applicant. Hence a finding was made that the verdicts of the jury were unsafe and unsatisfactory as the evidence did not support a finding of guilt to the criminal standard of proof of beyond reasonable doubt. The respondent contended that the effect of the judgment of the Court of Criminal Appeal is that the applicant's conviction are taken to never have happened, but there was no finding that the alleged acts and omissions of the applicant, the subject of the charges did not occur.
22. We make no finding that the events alleged by the applicant's stepdaughter did or did not occur. However, as noted in BKE, the circumstances surrounding the allegations are matters we (as was the respondent before us) are required to take into account in determining whether the applicant poses a risk to the safety of children.

(b) The period of time since those matters occurred and the conduct of the applicant since that time

1. It is 22 years since the applicant's stepdaughter made the allegations and it is 25 since the alleged conduct the subject of the charges laid against the applicant occurred.
2. The applicant has not been charged with any further offences since 1995.

(c) The age of the applicant at the time the matters occurred

1. At the time the alleged offending is said to have occurred the applicant was 35 years of age.

(d) The age of the victim at the time the matters occurred and any matters relating to vulnerability of the victim

1. The applicant's stepdaughter was between 15 and 16 years of age when the alleged offending the subject of the charges are alleged to have occurred. As we have noted, it is alleged that the applicant had acted inappropriately towards his stepdaughter prior to September 1991.

(e) The difference in age between the victim and the applicant

1. There was about a 21 year age difference between the applicant and his stepdaughter.

(f) Whether the person knew the victim was a child

1. There is no dispute that the applicant knew at the time the alleged offences are alleged to have occurred that his stepdaughter was a child.

(g) The applicant's present age

1. The applicant is now 60 years of age.

(h) The seriousness of the applicant's total criminal record

1. In March 1992, the applicant was charged with and pleaded guilty to the offence of assault on his former wife. The assault occurred, at the matrimonial home, at the time of their separation. The applicant was given a two-year good behaviour bond with surety in the amount of $200.00 and on the condition he not molest, or harass his wife. In assaulting his wife, the applicant hit her on the back of her head with his right open hand. He also punched her four times in the back. When his wife attempted to walk away, he grabbed her by the shirt and pushed her into a cupboard and then swung her around the room. The police fact sheet notes that this was the second occasion police had attended the home within three months.
2. In June 1992, the applicant was charged with breaching the Apprehended Domestic Violence Order. The protected person of that order was the applicant's wife. The applicant was again charged with breaching the Apprehended Domestic Violence Order in August 1992. He was convicted and fined $300.00. In a pre-sentence report, the applicant's wife said she had been subjected to sporadic violence throughout her relationship with the applicant and it was for this reason that she left him.
3. Again, in his evidence the applicant's explanation for this behaviour was the very toxic relationship he had with his wife. He said because of this toxic relationship arranging contact and access with the children was always difficult. It was in this context, when he was picking up the children for an access visit, that the breaches arose.
4. During his long employment history as a bus driver, ten complaints have been made against the applicant. The complaints include allegations of the applicant having behaved aggressively and used inappropriate language. The first complaint was made in April 1991. The secretary of a High School made the complaint. The basis of her complaint was the inappropriate manner in which the applicant had spoken to students when they gave him their bus fare which was what they had paid on the previous occasion, but which was no longer correct.
5. In September 1998, a complaint was made about the applicant having sworn at and threatened the complainant after he overtook bus the applicant was driving. The complainant subsequently acknowledged that his move to turn left from the right hand side of the bus may have been interpreted as being aggressive. However, he did not accept that the abuse shouted by the applicant was warranted. A further complaint, of a similar nature, was made in November 1998. The applicant was issued with a caution in regard to the September complaint. That is, his employer found his behaviour to be unacceptable. In his evidence before the Tribunal, the applicant said he did not understand this to have been a formal warning or disciplinary action.
6. Two complaints were made in 2001 in regard to the dangerous manner in which the applicant had been driving his bus. The applicant was also alleged to have used abusive language when question by one of the complainants.
7. In 2006, a complaint was made that the applicant had been rude and had humiliated and up-set a young girl, 17 years of age. The girl was in a wheel chair and the applicant told her carer that the girl could not travel in the bus unattended. The remaining complaints occurred in 2008 and 2013. They were all complaints made by an adult. There were two complaints in 2008. One related to the applicant failing to stop and pick up the complainant and other passengers who were waiting at the bus stop. The other complaint related to the applicant verbally abusing a passenger. The 2013, complaint also related to the applicant having used abusive language towards a passenger on his bus.
8. The applicant was spoken to and counselled in regard to each complaint. However, other than the 1998 formal warning, no disciplinary action was taken against him. In regard to the use of abusive language, the applicant said the various adult complainants had also used abusive language towards him. In regard to the young girl in the wheelchair, at the time, the applicant explained to his employer that the girl was non-verbal and could not assist in getting herself on or off the bus and sought clarification as to what his role was in such circumstances. We understand he did assist the young girl to get onto the bus and to secure her wheelchair with a strap and that his employer subsequently clarified what his position was.
9. The respondent contends these complaints exhibit a pattern of aggressive and abusive behaviour by the applicant and demonstrates poor self-regulation in circumstances of conflict. It is also contended that the applicant's response to such behaviours is to minimise his involvement and to blame others. The respondent noted the applicant had failed to disclose these complaints in the course of his original risk assessment and also during his assessment with Dr Lennings. It was only after having made the section 31 inquiries that the respondent became aware of these complaints. This failure to disclose, the respondent contended reflected on the applicant's credibility and his lack of frankness.

(i) The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition

1. The applicant relies on the report of Dr Lennings as to the likelihood of any repetition by him of conduct the subject of the allegations made by his stepdaughter and the other matters adverse to him.
2. In his report, Dr Lennings said he interviewed the applicant for a little over an hour and a half. He said that in addition to the interview the applicant completed a further 45 minutes of self-reported personality assessment. He said he found the applicant to be open and frank in his assessment, but he was obviously frightened by the implications for him if he does not obtain his clearance. Therefore, he was quite nervous about the assessment. He said the applicant displayed good emotional control throughout the interview and did not demonstrate any peculiarities of speech or language suggestive of a major mental illness.
3. Dr Lennings' report sets out the applicant's family history, his education, his employment, his medical history, his psycho-sexual history, his substance use history and his relationship history and child welfare involvement.
4. Dr Lennings also undertook a psychological and psychometric assessment of the applicant. In regard to the psychometric assessment, the applicant was asked to complete the Personality Assessment Inventory (PAI). Dr Lennings explained that the PAI is a self-administered, objective inventory of adult personality and is a test that has wide applicability within Australia and is regarded as a powerful test of adult personality. He said the applicant's response to this test indicated some defensiveness, and willingness to accept minor faults in his behaviour. He said defensiveness was not so severe that it invalidated the assessment, although some caution interpreting it was required. He said the applicant presented as a rigid man with little flexibility in his behaviour. He went on to say that the PAI did not indicate any psychopathology of note. He noted the applicant places great emphasis on harmony within relationships, and this emphasis on harmony makes him sensitive to interpersonal conflict. He said the applicant self-reported as being meek and unassertive, although Dr Lennings suspected his defensiveness probably accounts for some part of this self-report. On the basis of his interview and reviewing the applicant's history, Dr Lennings said the applicant seemed conflict adverse, but able to assert himself when required. Dr Lennings concluded there was no evidence of any personality-disorder behaviour.
5. Dr Lennings explained that risk assessment refers to attempting to structure ways of dealing with uncertainty and an exercise in probability. He said there are two broad types of data used in risk assessment. The first of these data types refers to historical or static variables, so called because they are invariant - such as a person's gender, whether they have previous convictions and the like. The second type refers to dynamic factors, often called "dynamic needs" or "criminogenic needs", as they represent variables that a person is supposed to have a "need" or get deficit in, and can be altered by time, treatment or opportunity. The examples of dynamic factors were things such as substance abuse, mental illness and employment. Dr Lennings went on to say that the critical issue in considering the assessment of risk is aligning the level of risk identified with the management strategies for the opportunity to offend.
6. Dr Lennings said his practice advocates caution with respect to the practice of risk assessment. He said that although a risk assessment is useful regarding decisions about risk and management thereof, the practice of risk assessment is subject to several important limitations. In this regard he said the base rate of sexual offender recidivism is low hence the prediction of such an uncommon behaviour is also difficult. Additionally, he said actuarial risks assessments provided information that pertained to the risk posed by groups of individuals that were studied in the creation of the instruments and is always unclear how any one individual performs relative to the group that was studied.
7. In regard to the risk assessment of the applicant, Dr Lennings explained this was complicated because of the lack of any reasonable grounds for assuming a sexual offence had occurred. He said there were substantial reasons for considering that the applicant had no sexual offence in his background even though he had been found guilty at trial and on this basis a formal risk assessment with an actuarial device could not be used. He also went on to say that it was quite challenging to consider using a dynamic risk instrument as the risk for sexual violence protocol (RSVP) is based on there being some risk. Nonetheless, Dr Lennings said that there were a number of dynamic risk factors drawn from the RSVP that could be used in assessing the applicant's risk. These included factors such as unmet intimacy needs, anti-social behaviour or attitudes, psychopathy, sexual deviation or sexual pre-occupation or sexually compulsive behaviour. Dr Lennings said the applicant did not exhibit any of these. In this regard it was noted the applicant is in a stable long term, emotionally satisfying relationship and has a good circle of friends and the applicant's background did not demonstrate any anti-social behaviour or attitudes. He said there was no evidence of any psychopathy, sexual deviation or pre occupation or sexually compulsive behaviour. He also noted that matters such as impulsivity, substance abuse, and employment difficulties were also absent in the applicant's case.
8. Dr Lennings noted that the applicant's age and diminution of sexual desire were protective factors. He said: "It is unwise to opine about any likely risk of a further sexual offence from [the applicant] in the absence of good reason to believe that any sexual offence has occurred in the past."
9. It was Dr Lennings opinion that there was no evidence to suggest an impression or risk of harm exists in relation to the applicant. That is, he concluded that the applicant presented as entirely within "normal" spectrum for behaviour, and no impression or risk to the harm of children is identified.
10. In his oral evidence, during cross-examination, Dr Lennings confirmed his conclusions as set out in his report. In regard to the alleged offending Dr Lennings said there were a number of difficulties in the matters before the District Court and in reaching a belief that something did occur as alleged. Dr Lennings also said that when conducting his risk assessment of the applicant he did not take into account sexual violence because the Court of Criminal Appeal had made a finding that none had occurred.
11. In regard to the complaints that had been made against the applicant in his role of a bus driver, Dr Lennings did not agree that these demonstrated a lack of self-regulation or that they were indicative of a pattern of aggressive and abusive behaviour. He noted the complaints spanned a period of 18 years and in his opinion were isolated incidents where the applicant was being irritable. He said ten complaints over 18 years were not unusual and had he been informed of them they would not have weighed heavily on his assessment.
12. Dr Lennings did not agree that the evidence of complaints and the applicant's responses to the behaviours of his stepdaughter in 1993 and 1994 demonstrated that the applicant has an aggressive and hostile interpersonal style. The complaints, Dr Lennings said were issues that arose from his employment. In regard to his responses to his stepdaughter having damaged his car, arrived late for his birthday and not letting his children attend his stepdaughter's birthday celebration, Dr Lennings agreed could not be described as "mild responses." However, he added they were responses given during a deteriorating relationship between the applicant and his stepdaughter.
13. Dr Lennings agreed there was some minimisation by the applicant of the 1992 assault on his wife. Again he noted this occurred as their relationship was ending.
14. In regard to the 1995 charges, Dr Lennings agreed it is quite common for a child to delay in making a complaint of sexual abuse. However, he added there is a high variation as to when complaints are made. He said a typical trigger event is when the child has a child of her own. He also said it could be a vengeful act.
15. Dr Lennings was also asked about the evidence of the applicant's son at the trial, in particular his evidence of a practice that he and his sister would sleep in the applicant bed when his mother was away. In 1991, the birth daughter of the applicant was 11 years of age.
16. Dr Lennings said that he thought co-sleeping with children was discouraged even though it was a practice of lots of people. He said children should be in their own bed and agreed it gave rise to perceptions of boundary issues. He said he saw this practice as being inappropriate parenting behaviour and it did not go to the issue as to whether there is or was sexualised behaviour. In any event, Dr Lennings noted that this is no longer an issue for the applicant given his age and that of his children.

(j) Any information given by the applicant

1. In his affidavit of 27 April 2016, the applicant again denied he had ever had sexual intercourse or acted inappropriately towards his stepdaughter. He said in 1998, or early 1999 his stepdaughter came up to him while he was in his bus at the interchange. He said his stepdaughter was also a bus driver and had come up to him and said words to the effect "I am sorry about what happened, it should not have happened." He said he closed the door and did not speak to her.
2. The applicant also said that in 2001 his daughter from his marriage had a heart attack and was in hospital for six months. He said that during this time he also had contact with his stepdaughter and she was always courteous and polite towards him. The applicant said he regrets that his marriage could not have been saved, that the children felt torn between them and that they spent years fighting.
3. The applicant also gave evidence of his work history as a bus driver. He started in 1982 and was suspended during his trial but was reinstated after his convictions were quashed. The applicant also addressed each of the complaints that had been made against him. He said he loves his job and finds it rewarding and that he gets along with management well.
4. In his written submissions, counsel for the applicant contended there were good reasons why the Tribunal can be satisfied that the applicant does not pose a risk to the safety of children. In this regard, counsel for the applicant pointed to the 30 plus years the applicant has worked as a bus driver without any complaints of a sexual or violent nature having been made against him and following his acquittal he was considered fit and proper to return to his employment as a bus driver. The applicant had also been assessed by Dr Lennings to not pose a risk to children and it was submitted that his evidence should be accepted.
5. Counsel for the applicant submitted that the applicant had been candid and direct in his evidence before the Tribunal. It was submitted that on the evidence, the Tribunal could not be satisfied that the allegations of abuse, made by the applicant's stepdaughter, were sufficient to demonstrate that the applicant poses a real and appreciable risk to children today. In this regard it was submitted that there was simply no evidence as to the truth of the allegations. It was noted that the police statement of the applicant's stepdaughter and the transcript of her evidence in the District Court trial had not been placed before the Tribunal as to the truth of what was stated and reference was made to the findings of the Court of Criminal Appeal decision.

(k) Any other matters the respondent considers necessary

1. In her written submission, counsel for the respondent reiterated that the Tribunal's jurisdiction is protective in nature and hence, the applicant's acquittal on appeal is not determinative of the question of risk to the safety of children.
2. In her initial written submissions, counsel for the respondent submitted that the applicant being granted a clearance could not be supported because: 1. the allegations were serious and if true there is a significant risk to the safety of children; 2. the allegations, if accepted, also suggest the applicant may have an interest in pubescent females and may act on the interest should circumstances present to him; 3. the minimising of past conduct such as alcohol use and violence within his relationship demonstrates a lack of insight by the applicant into his own behaviours; and 4. the misreporting of historical events and the consequence thereof demonstrated the applicant has not been fully frank and he lacks credibility.
3. The respondent contends the past conduct of the applicant, if true, demonstrates a substantial risk to children. He was alleged to have engaged in sexual acts with his stepdaughter and abused his position of trust. Simply because the conviction was overturned on appeal, did not mean that the alleged events did not occur. The findings of the Court of Criminal Appeal were essential a finding that the trial Judge had failed to ensure the applicant was given a fair hearing and on this basis the verdict was unsafe and unsatisfactory when applying the criminal standard of proof.
4. The respondent concedes that there has been no further adverse reports of any inappropriate behaviour by the applicant since the allegations were made. However, it was submitted that the past allegations and acts of the applicant were sufficiently serious to pose a continuing risk. In this regard the respondent pointed to the applicant's lack of candour in regard to his drinking habits and the complaints that had been made against him, together with the minimisation of his behaviour towards his stepdaughter and his assault on his wife.
5. In her written submissions filed subsequent to the hearing, counsel for the respondent again submitted the applicant lacked candour, minimised events and sought to discredit his stepdaughter and her mother without any basis. This, counsel for the respondent, submitted demonstrated a lack of insight into his behaviour and hence there was an ongoing risk to the safety of children.
6. Counsel for the respondent also submitted that the applicant's responses to questions asked of him in regard to his son's evidence at the trial about sleeping in his bed when their mother was away. It was submitted that the applicant's responses showed a significant lack of insight as to boundaries and this lack of insight was heightened considering the allegations of his stepdaughter included an assertion that the applicant had wanted her to enter his bed and lie with him.
7. Counsel for the respondent also submitted that the report of Dr Lennings lacked impartiality and was inappropriately emotive and should be given little weight, especially as he had formed a belief the applicant did not commit the offences as alleged and elected not to conduct a risk assessment on that basis.

Conclusions and orders

1. We reiterate, the applicant is not a disqualified person and there is no presumption that he poses a risk to the safety of children.
2. However, because he was charged with having committed a number of sexual offences against his stepdaughter, section 14 of the WWC Act required the respondent to conduct a risk assessment under section 15 of that Act. In conducting the risk assessment the respondent was satisfied that the applicant posed a risk to the safety of children and refused his application for a clearance (WWC Act, subsection 18(2)). The applicant seeks review of that decision and our role is to determine the correct and preferable decision having regard to the material before us and the applicable law. As we have noted at the commencement of these reasons for decision the ultimate issue for us to determine is whether in the circumstances, having regard to the paramount consideration in section 4 of the WWC Act and considered the matters in subsection 30(1) of that Act, we can be satisfied the applicant today poses a real and appreciable risk to the safety of children.
3. We agree the allegations giving rise to the 1995 charges laid against the applicant are very serious as they involved allegations of sexual and indecent offending by the applicant towards his stepdaughter. They also involved allegations of inappropriate conduct by the applicant towards his stepdaughter prior to the alleged offences. He has no conviction recorded against him and we make no finding as to the truth of the allegations. Nor do we find, as asserted by the applicant, that the allegations were a fabrication. We note the Court of Criminal Appeal did not make a conclusive finding in this regard.
4. Notwithstanding the applicant's acquittal of the criminal charges, the circumstances surrounding the charges are nevertheless relevant to the ultimate question as to whether the applicant poses a real and appreciable risk to the safety of children today. In this regard we have placed little weight on the evidence given by the applicant in regard to his encounter with his stepdaughter subsequent to his acquittal.
5. The alleged inappropriate conduct occurred 25 years ago and no further allegations of this kind have been made. During this time the applicant has been in a long and stable relationship with his current partner and they have a grown daughter. There is no evidence of any inappropriate conduct by the applicant towards his own children. While, there was evidence before the District Court that the applicant had a practice of co-sleeping with his son and daughter when his wife was away, there is no evidence the applicant had acted inappropriately. We agree, for the reasons given by Dr Lennings that such a practice is considered to be inappropriate parenting and was to be discouraged. We agree the responses the applicant gave in answer to questions asked of him about his practice of allowing his children (especially his birth daughter who was 11 years of age in 1991) to sleep in his bed when his wife was away might be viewed as lack of insight as to boundaries. However, we have some difficulty in concluding, as suggested by the respondent, that the lack of insight was heightened considering the allegations that were made against him by his stepdaughter included the applicant allegedly wanting her to enter his bed. As we have noted, the evidence given by the applicant's son at the trial was inconsistent with her account of events. This was especially so in regard to what was alleged to have happened in September 1991 when their mother was away on a ski trip.
6. Having observed the applicant give evidence, we are satisfied he is now well aware of appropriate boundaries. We note there is no evidence the applicant overstepped that boundary or that the co-sleeping continued after the applicant and his wife separated. In this regard, we note the applicant's birth daughter returned to live with the applicant after his wife left and it was about this time the applicant commenced his relationship with his current partner.
7. We agree the applicant's responses to his stepdaughter having been late for his birthday celebration, "crashing" his car and refusing to let his children attend his stepdaughter's 19th birthday was an over-reaction. The fact that his relationship with his wife had broken down and had become acrimonious was not a reason for him to behave, as her parent, in the manner he behaved. Again, this behavior demonstrated a lack of insight as to his parenting role and what effect his behavior could have on his children, including his stepdaughter. However, no further incidents of this kind have been reported since 1994. Nor are there any reports of similar events prior to 1994.
8. While the applicant disclosed that his drinking habits were between 6-12 beers over a weekend prior to being imprisoned in September 1997, in his evidence before the Tribunal he said he did not drink heavily. In the course of his trial, the applicant acknowledged he sometimes drank port but ceased drinking port in 1989/1990 after he had a one night session of drinking scotch and port. His evidence before the Tribunal was that he was a social drinker and not a binge drinker. In the absence of any evidence to suggest the contrary we accept the applicant's evidence that he is a social drinker today and has been so for some time.
9. The applicant's conviction of assault on his former wife and his convictions for breaching an AVO occurred at the time of their separation and their acrimonious Family Court proceedings. This does not excuse that behaviour, but again these offences occurred some 23 to 24 years ago and there have been no further offences of this nature since that time. Nor is there any evidence of such behavior prior thereto.
10. We agree there was some minimisation by the applicant of his behavior towards his wife and his stepdaughter in regard to the 1993 and 1994 altercations. We also agree the applicant incorrectly recorded the evidence his former wife had given at the trial. In his oral evidence he explained he had recorded what he recollected his legal representative had told him at the time of his trial, but acknowledged that this was not what was recorded in the transcript of the trial proceedings. The respondent suggested the applicant had deliberately lied so as to discredit his former wife and his stepdaughter in order to advance his application for a clearance.
11. As pointed out by the respondent, he is not a sophisticated man. In our opinion, while the applicant should have taken more care in making the statement he made, we do not find that he deliberately lied, or lacked candour.
12. We accept that the complaints made against the applicant in the course of his employment are indicative of Dr Lenning's observation that the applicant is a rigid man with little flexibility in his behavior. The applicant's responses to his stepdaughter having been late for his birthday celebration, "crashing" his car and refusing to let his children attend his stepdaughter's 19th birthday are also indicative of this behavior.
13. It is not disputed the applicant failed to disclose, to the respondent in the course of her risk assessment, the complaints made against him in the course of his employment as a bus driver. While it is important that applicants provide all relevant information to the respondent for the purpose of her assessment, we do not find that in this case the applicant has deliberately sought to withhold the information about the complaints. Most occurred sometime ago and it is understandable that the applicant may have forgotten the details or the significance of them in regard to this application. Once they were disclosed, the applicant has responded to them. We agree with the respondent the applicant retains a measure of defensiveness about his own behavior in the circumstances giving rise to the complaints. However, we do not accept that the complaints show a pattern of aggressive and abusive behavior or an inability by the applicant to self-regulate his behavior in future. While there are 10 complaints they span a period of 18 years and not every complaint involves allegations of aggressive and abusive behavior sufficient to raise concerns about the applicant posing a risk to the safety of children.
14. Given the time that has lapsed since the 1995 allegation were made and the lack of any evidence of similar allegations having been made prior thereto or subsequent thereto in the applicant's personal life or during his employment, in our opinion, the likelihood of the applicant again behaving in the manner alleged is low. He is now 60 years of age and as pointed out by Dr Lennings there are many factors in the applicant's favour which are protective of a risk of him offending in the future. The respondent does not dispute these factors in favour of the applicant.
15. We understand the respondent's concerns in regard to Dr Lennings having conducted the risk assessment of the applicant without considering the possibility that the alleged events may have occurred. However, we understand it was not professionally appropriate for Dr Lennings to use assessments such as the STATIC 99 risk assessment to assess the applicant's risk of re-offending, when he had effectively been found not guilty of the alleged offending. A similar position, we note has been taken by other psychologists in review applications of this kind where the applicant has not been convicted of an offence. Accordingly, no criticism can be leveled at Dr Lennings in this regard. However, we do agree with the respondent that it was not for Dr Lennings to conclude that in the absence of a conviction the alleged offending did not occur or was unfounded. However, we do not find, as suggested by the respondent that Dr Lennings was biased.
16. It goes without saying that had the applicant's conviction been upheld, he would be a disqualified person. However, it was not upheld. It was quashed and he was acquitted of all charges. Nevertheless, an assessment as to whether the applicant poses a real and appreciable risk to the safety of children must be made. Dr Lenning's opinion is not determinative of this issue. We have considered his evidence together with all the evidence and material that is before us and weighed it accordingly.
17. Finally, other than the complaints that have been made against him, the applicant has more than 30 years of working in child-related work. There is no evidence of the applicant having behaved inappropriately towards children other than the complaint made by the school in 1991 and the parent of a child in 2006. These, in our opinion, are insufficient to make a finding that the applicant poses a risk to the safety of children.
18. Having regard to the paramount consideration of the safety, welfare and well-being of children, in particular protecting them from child abuse, for the reasons we have given, in our opinion, we cannot be satisfied that the applicant poses a risk to the safety of children today. Accordingly the appropriate order is to set aside the decision of the respondent and to substitute that decision with a decision that the applicant be granted a working with children check clearance.
19. Accordingly, we order: (1) The respondent's decision made on 19 November 2015 to refuse the applicant a working with children check clearance is set aside. (2) In substitution for that decision the following decision is made: The applicant is granted a working with children check clearance. 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: 22 August 2016