DWY v Children's Guardian

Background

1. On 7 November 1979, the applicant was born.
2. On 5 December 2007, the applicant was charged with the following offences; 1. aggravated sexual intercourse with a child between the age of 10 and 14 years under s 66C(2) of the Crimes Act 1900 (NSW) (now repealed) by between 26 and 31 January 2006 allegedly having sexual intercourse with the complainant when she was 13 years old and under the applicant's authority (the first offence); 2. aggravated indecent assault under s 61M(1) of the Crimes Act (now repealed) by between 1 and 17 August 2006 allegedly indecently assaulting the complainant when she was 14 years old (the second offence); 3. sexual intercourse with a child between the age of 14 and 16 years under s 66C(2) of the Crimes Act (now repealed) by between 1 and 17 August 2006 allegedly having sexual intercourse with the complainant when she was 14 years old (the third offence); 4. using a carriage service to procure persons under 16 years of age under s 474.26 of the Criminal Code Act 1995 (Cth) (Criminal Code) by between 5 January and 15 September 2006 allegedly using a carriage service to transmit communications to the complainant when she was 14 years old with the intention to procure her to engage in or submit to sexual activity with himself (the fourth offence); 5. using a carriage service to groom persons under 16 years of age under s 474.27 of the Criminal Code by between 5 January and 15 September 2006 allegedly using a carriage service to transmit communications that included indecent material, to the complainant when she was 14 years old with the intention of making it easier to procure her to engage in or submit to sexual activity with himself (the fifth offence).
3. Between 17 May and 8 June 2010, the trial of the applicant on the first to fifth offences took place before a judge and jury in the District Court of New South Wales (the criminal trial). The jury: 1. delivered a verdict of not guilty on the first to third offences; 2. was hung and discharged on the fourth and fifth offences.
4. On or shortly before 6 August 2010, the Director of Public Prosecutions no billed the charges for the fourth and fifth offences.
5. On 15 March 2017, the applicant applied for a WWCC clearance.
6. On 16 May 2017, the respondent determined that the applicant was subject to an interim bar and sent a notice of risk assessment to the applicant.
7. On 18 August 2017, the applicant's application was terminated by the respondent due to him not responding to the notice of risk assessment within three months.
8. On 16 October 2017, the applicant applied a second time for a WWCC clearance.
9. On 29 January 2018, the respondent closed this application as the applicant did not disclose alternative aliases by which he is known.
10. On 23 June 2018, the applicant applied a third time for a WWCC clearance.
11. On 13 July 2018, the respondent determined that the applicant was subject to an interim bar and sent a notice of risk assessment to the applicant.

The Decision

1. On 9 May 2019, the respondent made the Decision. In his reasons for refusal the Director of the respondent, having considered specified documents including information provided by NSW Police Force, and information provided by NSW Family and Community Services, relevantly stated: Matters to be taken into consideration In making an assessment of risk, the Children's Guardian has considered the documents referred to above and the provisions of sections 15(4) and 15(4A) of the Act. Information from the NSW Police indicates that on 25 June 2010, [the applicant] was indicted at Sydney District Court (the Court) for child-related criminal charges. After a five-week trial, [the applicant] was found 'not guilty' for the charges of 'aggravated indecent assault - victim under the age of 16 years', 'aggravated sexual intercourse parson above 10 and below 14 years', 'have sexual intercourse with person above 14 and below 16 years', 'aggravated sex assault-victim under the age of 16 years' (2 counts} and 'incite person under 16 years to commit act of indecency'. Additionally, there were two Commonwealth Criminal Code charges of 'use carriage service to groom under 16 years for sex' and 'use carriage service to procure under 16 years for sexual activity' and the jury did not reach a verdict in relation to those two charges. The Director of Public Prosecutions determined not to proceed with a re-trial and the matter was subsequently discharged. The abovementioned charges pertain to [the applicant] (aged 26 years) allegedly sexually assaulting (penial/vaginal penetration) the complainant (aged 13 years) in January and August of 2006. The charges also relate to [the applicant] allegedly using a carriage service (the intemet/MSN messenger) in an attempt to groom the complainant for sexual purposes. Information provided by the Court and the NSW Police indicates that following the complainant's disclosures about the incidents, an AVO was put in place listing [the applicant] as the defendant and the child as the protected person. Information provided-by Family and Community Services indicates that [the applicant] was recorded as a Person Causing Harm to the complainant. According to information from the NSW Police, in 2006, [the applicant] was close friends with the complainant's uncle (who lived in the same home as the complainant) and was a family friend of the complainant's parents. [The applicant] would often attend the complainant's home during lunch breaks and on weekends. It is noted that [the applicant] was married at the time of the allegations and that his wife was pregnant with their first child. In September 2006, the complainant disclosed to her school friends that [the applicant] had sexually assaulted her, and this information was ultimately disclosed to the complainant's mother and to the NSW Police. The complainant was able to recount specific details from two incidents of sexual assault that occurred in January and August of 2006; including, where the assaults took place in her bedroom, who was home and what she was wearing. The complainant's account of the two assaults remained consistent during her disclosure to her parents, to the police and to the Court. However, it is noted that when the complainant disclosed the events to her friends, she exaggerated the amount of times the assaults occurred and the type of sexual activity that took place. At the trial, the Crown alleged that the first sexual assault took place between 26 and 31 January 2006, when the complainant was 13 years old. The complainant stated that she and her brother were left in the care of [the applicant] (aged 26 at the time) on 29 January 2006 when the rest of her family attended the hospital due to her aunt giving birth. The complainant alleged that [the applicant] sexually assaulted her before being interrupted by the complainant's father knocking on the front door and at that point, he got dressed and left. [the applicant] gave evidence at the trial in relation to the allegations and denied that he had sexually assaulted the complainant. [The applicant] provided an alibi in relation to his whereabouts on 29 January 2006, stating that he was not left alone with the complainant and her brother at any time on that evening and that his wife had picked him up from complainant's home before everyone had left for the hospital. At the trial, witnesses provided evidence In relation to [the applicant's] whereabouts on the evening of 29 January 2006. Witnesses stated that [the applicant] was left alone with the complainant and her brother after he volunteered to do so. Other witnesses state that they saw [the applicant's] car outside the complainant's property when they left for the hospital, which indicated he remained at the house. [the applicant's] wife provided evidence at the trial, stating that she had dropped off and picked up [the applicant] from the complainant's house on the evening of 29 January 2006, contrary to the other witnesses. However, at the trial, this was found to be a false alibi and [the applicant's] wife was subsequently charged with perjury. The Crown alleged that the second sexual assault took place between 1 and 17 August 2006, when the complainant was 14 years old and had missed the school bus and stayed home for the day. [The applicant] (aged 27 at the time) allegedly attended the complainant's home with her uncle, for lunch. The complainant alleged that [the applicant] came into her bedroom to reconnect her computer to the internet and while he was in her bedroom he again sexually assaulted her until [the applicant] was called by her uncle downstairs and he got dressed and left. The Crown provided evidence at the trial proving that the complainant had been absent from school on the 1st, 3rd, 8th, 9th, 1oth and 17th August 2006 and suggested that on one of these days, [the applicant] sexually assaulted her for the second time. The Crown provided evidence at the trial by way of phone call logs, which showed that [the applicant] was at the accused's address on 2 August 2006, which, although was not one of the dates that the complainant was absent from school, it demonstrated that [the applicant] did make visits to the complainant's home during that week. [the applicant] gave evidence at the trial in relation to the allegations and denied that he had sexually assaulted the complainant. [the applicant] provided alibis for the dates that the complainant was not at school in early August. [The applicant's] alibi was that he was having a very busy period at work during August 2006 and would not have been able to take long lunches and go to the complainant's home with her uncle. However, this is contrary to the evidence provided by the Crown. At the trial, the Crown alleged that between 5 January and 15 September 2006, [the applicant] had used MSN messenger to groom the complainant for sexual purposes. During investigations, [the applicant] and the complainants' computers were seized by detectives. Forensic experts were able to locate evidence of chat session logs between the complainant and [the applicant] that occurred throughout 2006. During these chat sessions, it is alleged that [the applicant] tried to get the complainant to expose herself on a web camera and take nude pictures. Further, [the applicant] allegedly discussed having sexual intercourse with the complainant and blackmailed the complainant into having sex with him. [The applicant] gave evidence at the trial and denied writing any sexualised messages to the complainant via MSN. However, [the applicant] did admit to speaking with the complainant over MSN and recalled some of their MSN conversations in 2006. [the applicant's] defence suggested that before the MSN files were taken by the police, they were tampered with by the complainant's father, to incriminate him further. Several forensic experts gave evidence at the trial In relation to these allegations. The experts stated that it was possible for the MSN chat files to have been edited before they were seized by police, however the person responsible for editing or fabricating the MSN conversations would have had to have had considerable IT knowledge to do so. At the trial, the Crown alleged that on 2 October 2006, [the applicant] had downloaded 'R-Wipe and Clean' software to erase the records from his computer of the sexualised MSN conversations he had had with the complainant. The Crown suggested that [the applicant] did this due to his "consciousness of guilt. [The applicant] gave evidence at the trial which confirmed that he had downloaded the 'R-Wipe and Clean' software. However, he had done this because his wife had found adult pornography on his computer and had requested its removal. [The applicant] stated that the software was downloaded for this purpose only and that if it had erased other content from his computer, it was coincidental. However, it is considered that [the applicant's] wife's credibility in relation to this alibi is questionable given her willingness to lie at the trial in relation to the other allegations. [The applicant] (currently aged 39) has provided submissions in support of his WWCC application. [Name omitted] ([the applicant's] nephew), Instructor/Proprietor from [name omitted] and NSW Police Officer, provided a positive employer reference in support of [the applicant], dated 12 August 2017. [Name omitted] notes that [the applicant] worked at [name omitted] from February 2016 to May 2017 and that during this time; he instructed martial art classes for children and showed professionalism during the classes. [Name omitted], NSW Police Officer, provided a positive character reference (undated) for [the applicant] stating that he has known [the applicant] since 2013 and that his children have been entrusted into [the applicant's] care from time to time and that he had no hesitation to do so. [Name omitted] (the complainant's uncle) provided a positive character reference (undated) for [the applicant]. [Name omitted] supports [the applicant's] version of-events and stated that he believes [the applicant]·to be "an innocent man". [Name omitted] commented on the evidence provided at the trial and stated that the evidence proves [the applicant's] innocence as he was not physically present during either time the alleged assaults accrued. [Name omitted] reported that the detective investigating the assaults had a "personal issue" with [the applicant] and that the allegations were driven by the complainant's mother wanting compensation money. [The applicant] provided a statutory declaration dated 9 October 2018, which confirms that he requires a WWCC clearance to be a martial arts/sports coach for children. Since 2015, [the applicant] has been a, director of his own IT company [Name omitted], which is not child-related. [The applicant] indicated that he sought psychological treatment from 2006-2007 and has been seeking treatment with his general practitioner for the past 5 years, regarding his anxiety from the trial. [The applicant] did not provide a professional reference from his general practitioner or psychologist. Contact was made with [the applicant] on 25 February 2019. [The applicant] stated that whilst he is self-employed in IT services he has been engaged in child-related employment for many years as both a martial arts teacher and as a football coach for his son's team, without issue. [The applicant] confirmed that he stands by the evidence he provided at the trial in relation to his alibi's and stated that the lead detective from the case wanted to pursue the charges despite the complainant asking to withdraw the allegations. [The applicant] stated that he believed that the complainant had a "crush on him" which is why she made up the allegations and that the jury only deliberated for half-an-hour in relation to the sexual assault allegations and that this demonstrated there was an obvious lack of evidence to support the complainant's claims. [The applicant] confirmed that he still believes that the MSN messenger conversations were tampered with by the complainant's father, to implicate him. [The applicant] stated that he did not use the 'R-Wipe and Clean' software to delete any MSN conversations and that if he was going to try to hide something like that form his computer, he would have used other software and it would have been more noticeable. [The applicant] reported that the jury deliberated over the grooming charges for 2-3 weeks and this was due to one juror being unconvinced of his innocence. [The applicant] reported that part of his IT business services involves assisting prosecutions with forensic IT evidence and that his passion to do this came from his experience at the trial. [The applicant] provided an additional statutory declaration in response to the Children's Guardian's proposed reasons for refusing his WWCC application, dated 8 April 2019. [The applicant] argued that his alibi evidence presented at the trial was "simplified" in the proposed reasons and that this had not been done in his favour. [The applicant] stated that his wife was not charged for perjury due to lying about picking him up from the complainant's house, rather, his wife was charged for perjury for "saying she did not have her work car at the time". [The applicant] argued that the witnesses who supported the complainant's version of events at the trial (in relation to the first alleged assault) had fabricated their statements and "colluded stories to align to the alleged victim's story". [The applicant] noted that numerous pieces of evidence presented at the trial, including hospital admission records, proved that those witnesses did not arrive at the hospital until 4am on that evening and for this reason, he could not have been left alone with the complainant and therefore could not have assaulted her. [The applicant] stated that his alibi for the second alleged assault was again simplified in the notice. [The applicant] stated that the evidence supporting his whereabouts included phone records, meetings, minutes of meetings, finger scan records, the complainants school records and credit card statements, which all demonstrate that he did not attend the complainant's home on any of the days that she was absent from school. [The applicant] also disputed that simplifying that the complainant "exaggerated" the sexual assaults to her friends did not capture how she "manipulated her friends and gained notoriety though this imaginary story". [The applicant] again refuted that he engaged in sexualised MSN conversations with the complainant, stating that the complainant could not remember the chats occurring, that his computer was not connected to the internet at the time of the chats and reiterated that this evidence demonstrates the chats were fabricated by the complainant's father or by the police. The Children's Guardian has considered [the applicant's] further submissions; including his alibi evidence from both instances of alleged sexual assault, the evidence regarding the MSN messenger conversations and his reasons for using the 'R-Wipe and Clean software'. While the evidence presented during [the applicant's] trial was not considered sufficient to support a finding that the alleged offences occurred beyond a reasonable doubt, the Children's Guardian is satisfied that the evidence supports a finding that the events reported by the complainant occurred as alleged, on the balance of probabilities. The Children's Guardian considers that [the applicant] does have some current protective factors present, including his positive child-related employment history, his relationship with his wife and four children and his pro-social engagement with the community. However, the majority of these protective factors were also present during the time of the allegations in 2006 and therefore limited weight can be given to these factors. Although [the applicant] was acquitted of the sexual offence charges during the criminal proceedings, this is not tantamount to a finding that the allegations were untrue; only that the jury could not be satisfied beyond reasonable doubt that they occurred. It is considered that the evidence put forward at the trial did not categorically refute the allegations and the possibility that the allegations are true remains reasonably open from the information available to the Children's Guardian. Further, the jury was found to be deadlocked in relation to the two grooming charges and was not able to reach the required unanimity in relation to whether [the applicant] groomed the complainant for sexual purposes via a carriage service, and the Children's Guardian has given weight to this finding. The evidence presented during this trial and the outcome of the trial, support a finding that, on the balance of probabilities, the conduct occurred as alleged by the complainant. Given [the applicant] has been the subject of serious child-related sexual offences following allegations that he sexually assaulted a child on multiple occasions and groomed that same child for sexual purposes over an extended period, the Children's Guardian considers that [the applicant] may pose a risk to the safety of children. Decision The Children's Guardian is satisfied that [the applicant] poses a real and appreciable risk to the safety of children. For the reasons provided above, the Children's Guardian has refused to grant [the applicant] a WWCC clearance pursuant to section 18(2) of the Act.

Procedural history

1. On 14 June 2019, the applicant commenced these proceedings against the respondent by filing an application.
2. On 18 July 2019, 29 August 2019, and 9, 10 and 22 October 2019, the Tribunal made orders for the preparation of the hearing of the proceedings.

The hearing

1. At the hearing the applicant relied on extensive written evidence including: 1. the statement dated 1 November 2019 of himself; 2. the addendum dated 15 November 2019 to the report dated 24 September 2009 of Peter Bell (Mr Bell); 3. the psychological assessment report dated 25 September 2019 of Jessica Pratley (Ms Pratley).
2. The applicant and Ms Pratley gave oral evidence. Neither Mr Bell nor the persons who gave character references for the applicant were required for cross-examination.
3. The respondent relied on extensive written evidence including: 1. the documents filed on 19 July 2019 (pp 1-1614); 2. the documents filed on 16 September 2019 (pp 1-487); 3. the documents filed on 13 December 2019 (pp 1-120).
4. The applicant relied on his undated written submissions and made oral submissions.
5. The respondent relied on her written submissions dated 13 December 2019 and made oral submissions.

Statement dated 1 November 2019 of the applicant

1. In his statement dated 1 November 2019, the applicant set out his reasons for denying that he committed the first to fifth offences.

Oral evidence of the applicant

1. In cross-examination, the applicant: 1. denied that he committed the first to fifth offences and explained why he could not have done so; 2. conceded that his behaviour when in the company of members of the complainant's family at the time of the first to fifth offences was below what was appropriate, particularly in regard to pranks and teasing; 3. denied that he engaged to any of the behaviour attributed to him by five persons whose evidence about these matters was not tested in the criminal trial (the other behaviour).
2. In answer to our questions, the applicant said that he was married with four children, he has worked for himself in the IT industry since 2008 with contracts with clients including a major financial institution, a government department and a tertiary institution, prior to the interim bar was teaching martial arts to adults and children and wanted to do that again, as well as be involved in activities with his children such a coaching sports teams.

Addendum dated 15 November 2019 to the report dated 24 September 2009 of Mr Bell

1. In the addendum dated 15 November 2019 to his report dated 24 September 2009, Mr Bell refers to matters not included in his report, sets out the findings of his review of the applicant's computer activity, summarises all points and expresses the following conclusion: My opinion evidence, is that there was insufficient system evidence on either computer to show that, based on the balance of probabilities that a chat conversation using a carriage service took place, with the content, and at the time and date alleged by the Crown.

Psychological assessment report dated 25 September 2019 of Ms Pratley

1. In her psychological assessment report dated 25 September 2019, Ms Pratley: 1. sets out her qualifications and experience; 2. sets out the sources of her information, being her interview with the applicant and documents received from the applicant; 3. states that she applied the following risk assessment tools: Static-99R, Risk for Sexual Violence Protocol (RSVP), and Structured Assessment of Protective Factors (SAPROF); 4. sets out her observations of the applicant's presentation and engagement; 5. sets out the background information received from the applicant in relation to his family and developmental history, educational/vocational history, psychosocial and relationship history, sexual development, medical history, substance use and gambling history, and psychological assessment; 6. records the results of the Personality Assessment Inventory (PAI) completed by the applicant: [The applicant's] PAI results did not demonstrate any evidence of clinical psychopathology. He reported a stable and positive sense of self. He is confident and optimistic and has clear goals in life. [The applicant] is warm and friendly, he is likely to be uncomfortable with conflict as he values harmonious relationships. He denied suicidal ideation. [The applicant's] results indicate that he is meek and unassertive. He reported low motivation for treatment, which is unsurprising given his current functioning. Overall, his results on the PAI were broadly consistent with his account at interview. 1. sets out the first to fifth offences and the applicant's reasons for denying that he committed them; 2. sets out an explanation of the process of risk assessment; 3. sets out an explanation and the results of the Static-99R: In sum, although [the applicant] was likely within an average risk range at the time of being charged with sexual offences in 2006, it is likely that his risk of sexual offending at this point in time is minimal. 1. sets out an explanation and the results of the RSVP: 47. Application of the RSVP suggests that [the applicant] is in a low risk category. The following issues are seen to currently contribute to his level of risk: • He utilised psychological coercion in commission of the alleged offences, given that he was an adult and the victim a child, and he was in a position of authority as her martial arts instructor; • [The applicant] denies that he perpetrated the offences. 1. sets out an explanation and the results of the SAPROF: 49. Based on my application of the SAPROF, the following protective factors are partially or fully present for [the applicant] and will likely remain present for the next 6-12 months, if all factors in his life remain stable: a) He is seemingly of average intelligence (based on his reported employment history); b) He reported a secure attachment with his grandparents in childhood, despite the trauma he experienced in his mother's care; c) He demonstrates reasonable empathy skills; d) He has adequate coping strategies; e) He has adequate capacity for self-control; f) He is engaged in meaningful employment; g) He demonstrates appropriate financial management; h) He reports positive attitudes towards authority figures; i) He has clear life goals; j) He is taking medication as prescribed; k) He has a prosocial support network; I) His intimate relationship is stable. 1. provides the following risk summary: 50. Consideration of [the applicant's] risk and protective factors, combined with the period of time he has been offence-free within the community, suggests that he currently poses a low risk of sexual recidivism. In fact, his level of risk of sexual harm is likely to be equivalent to an individual who has been convicted of non-sexual offences, and no sexual offences. If [the applicant] were to sexually or violently reoffend in future, based on his history, this would most likely occur in the context of him being in a position of authority over a vulnerable person, namely a child or a vulnerable adult. Unfortunately, [the applicant's] denial of the alleged offending, and the limited information available to me make it difficult to offer a comprehensive formulation regarding his likely offence pathways. 1. expresses the following conclusion: 54. If [the applicant] did perpetrate the offences, I note that he has not faced allegations since 2006. Furthermore, he presents with multiple protective factors and limited risk factors. As such, it is my view that [the applicant] poses minimal risk to children and does not require therapeutic intervention to address this. Furthermore, given the time that has passed, it is likely that [the applicant] poses no more risk of harm to children than an individual who has been charged with non-sexual criminal offences.

Oral evidence of Ms Pratley

1. In cross-examination, Ms Pratley: 1. explained her practice for requesting documents for a psychological assessment; 2. explained that her risk summary in paragraph 50 of her report is based on the assumption that the applicant did commit the first to fifth offences, and that if the applicant did not commit the first to fifth offences the risk assessment is null and void; 3. did not change her opinion in the light of the other behaviour.

The documents filed on 19 July 2019

1. The documents filed on 19 July 2019 comprise: 1. documents of the respondent dealing with the applicant's third application for a WWCC clearance; 2. documents provided by Liverpool Local Court, Sydney District Court, NSW Family and Community Services, NSW Police Child Abuse and Sex Squad, NSW Director of Public Prosecutions, and a sporting club in response to an assessment notice under s 31(1) of the WWC Act; 3. the applicant's criminal history; 4. the applicant's apprehended violence order history.

The documents filed on 16 September 2019

1. The documents filed on 16 September 2019 comprise statements of witnesses, transcripts of interviews with witnesses, jury material and other material obtained from the District Court in connection with the criminal trial.

The documents filed on 13 December 2019

1. The documents filed on 13 December 2019 comprise: 1. statements of witnesses and other material obtained from the Commissioner of Police, NSW Police Force in connection with the criminal trial; 2. a document of the respondent dealing with the applicant's third application for a WWCC clearance.

The WWC Act

1. Part 1 (which is comprised by ss 1-5C) deals with preliminary matters, and relevantly provides that: 1. the object of the WWC Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3; 2. 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" : s 4; 3. the expression "risk to the safety of children" means "a real and appreciable risk to the safety of children": s 5B.
2. Part 3 (which is comprised by ss 12-25) deals with WWCC clearances, and relevantly provides that: 1. a person may apply to the respondent for a WWCC clearance: s 13(1); 2. the respondent may conduct a risk assessment of an applicant for a WWCC clearance, and in so doing may consider the same factors that are set out in s 30(1): s 15(1), (4); 3. the respondent must not determine that an applicant does not pose a risk to the safety of children unless the respondent is satisfied of the same matters that are set out in s 30(1A): s 15(4A); 4. the respondent may, at any time after receiving an application for a WWCC clearance or commencing an assessment of an applicant for a WWCC clearance, determine that the applicant is subject to an interim bar, being a bar on the applicant engaging in child-related work if the respondent is of the opinion that it is likely that there is a risk to the safety of children if the applicant engages in child-related work: s 17(1), (2); 5. an interim bar ceases to have effect in the case of an applicant for a clearance, if the applicant is granted a clearance: s 17(4)(b); 6. the respondent must grant a clearance to a person who is subject to such a risk assessment unless the respondent is satisfied that the person poses a risk to the safety of children: s 18(2).
3. Part 4 (which is comprised by ss 26-30) deals with reviews and appeals, and relevantly provides that: 1. a person who has been refused a WWCC clearance by the respondent may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of the decision within 28 days after notice of the decision was given to the person: s 27(1); 2. an applicant must fully disclose to the Tribunal any matters relevant to the application: s 27(4); 3. when determining an application under Part 4, the Tribunal is to have regard to the following matters which are set out in s 30(1): (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 criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. 1. the Tribunal may not make an order under Part 4 which has the effect of enabling a person (called "the affected person") to work with children in accordance with the WWC Act unless the Tribunal is satisfied of the following matters which are set out in s 30(1A)(a) and (b): (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.
4. Part 5 (which is comprised by ss 31-36B) deals with the provision of information to the respondent, and relevantly provides that the respondent may, by notice in writing (called an "assessment notice"), require any person to provide the respondent with a statement or information relevant to an assessment of whether a person poses a risk to the safety of children: s 31(1)(a).

The ADR Act

1. Chapter 2 (which is comprised by ss 7-9) deals with the administrative review jurisdiction of the Tribunal, and relevantly provides that the Tribunal has administrative review jurisdiction over a decision of an administrator if the enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of any such decision made by the administrator in the exercise of functions conferred or imposed by or under the legislation: s 9(1)(a).
2. Chapter 3 Part 3 Division 3 (which is comprised by ss 63-66) deals with the powers of the Tribunal on an administrative review, and relevantly provides that in determining an application for an administrative review under the ADR Act of an administratively reviewable decision, the Tribunal: 1. is to determine what is the correct and preferable decision having regard to the material before it including any relevant factual material and any applicable written or unwritten law: s 63(1); 2. may decide to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside: s 63(3)(c).

The CAT Act

1. Part 3 (which is comprised by ss 28-34) of the CAT Act deals with the jurisdiction of the Tribunal, and relevantly provides that: 1. the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the CAT Act or any other legislation: s 28(1); 2. the jurisdiction of the Tribunal includes the administrative review jurisdiction: s 28(2)(b); 3. the ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator: s 30(1).

Applicable legal principles

1. In an application for an administrative review of a decision under s 27 of the WWC Act the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including material which may not have been before the respondent: BKV v Children's Guardian [2015] NSWCATAD 65 at [9].
2. Neither party bears an onus in an application for review under s 27 of the WWC Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 at [39]-[40]. The initial practical or forensic onus but not the legal onus is generally to be carried by the applicant: DJS v Children's Guardian [2018] NSWCATAD 71 at [32]-[33].
3. The definition under s 5B of the WWC Act of a "risk to the safety of children" draws upon the explanation given in relation to the word "risk" as it appeared in the former Child Protection (Prohibited Employment) Act 1998 (NSW) of "whether there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 (V) at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 (BKE) at [26]; CJT v Office of the Children's Guardian [2016] NSWSC 738 (CJT) at [40].
4. In CJT, Fullerton J at [39] observed that the remarks of Young CJ in Eq about the meaning of risk in V at [42] have "been consistently applied in construing the concept of a 'risk to the safety of children' for the purposes of ss 27 and 28 of the Working with Children Act".
5. In BKE, Beech-Jones J considered the approach to allegations that had not been proved, and noted that significant guidance could be derived from M v M (1988) 166 CLR 69, in which the High Court set out propositions for assessing risk to the safety of children in the context of Family Court litigation. Beech-Jones J at [30]-[33] held these propositions apply to the assessment of risk under the WWC Act and concluded that in some cases the Tribunal would not be able to make a finding as to whether the abuse in fact occurred or not. In those circumstances, circumstances maybe such that nevertheless there is a risk to a child.
6. In Office of the Children's Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[17] Harrison J summarised these propositions as follows: [14] The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. [15]The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to: "… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare." [16] Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. [17] A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.
7. CFW at [13]-[17] has been followed and applied: CFJ v Office of the Children's Guardian [2016] NSWSC 1625 at [70] (corresponding to [14] and [15] of CFW) and [72] (corresponding to [16] of CFW); CMD v NSW Office of Children's Guardian [2018] NSWSC 1348 at [49] (in which express reference was made to a "three-stage analysis").
8. The stages of analysis undertaken in CFW at [13]-[17], whether two or three in number, represented a logical sequence of reasoning with respect to a given set of allegations and are designed to plumb the full range of considerations relevant to the assessment of risk of safety to children for the purposes of s 18(2) of the WWC Act and having regard to the object of the WWC Act being to "protect children". It follows that, on this approach, the Tribunal is required to assess all allegations raised by the respondent although the Tribunal may disaggregate its consideration of the respective allegations and legitimately undertake a staged consideration in its judgment as it considers fit, provided there was overall compliance with the requisite statutory requirement: Children's Guardian v CXZ [2019] NSWSC 1083 (CXZ) at [167]-[168].
9. In Children's Guardian v CKF [2017] NSWSC 893 at [56] Davies J observed with respect to the comments of Harrison J in CFW at [16]: [56] With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or "a lingering doubt or suspicion" counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.
10. Where there is more than one allegation in respect of which the Tribunal makes an open finding, it is necessary the Tribunal to consider the accumulated weight of suspicions held as to each such allegation: CXZ at [286]-[291], [309].
11. In GMO v NSW Office of the Children's Guardian [2018] NSWSC 1348 at [60], McCallum J observed in the context of review proceedings under s 27(1) of the WWC Act: [60] The statute plainly contemplates that, whereas the imposition of a criminal penalty requires proof of a specific allegation beyond reasonable doubt, it is enough to disqualify a person from clearance under the Act that there exists a real and appreciable risk to the safety of children. That is an evaluative judgement. It is to be undertaken in a very different context from the assessment of the allegations in the criminal context, most importantly including the fact that the applicant has a statutory duty to disclose all relevant information.
12. In CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered in ZZ v Secretary, Department of Justice [2013] VSC 267 (ZZ), where Bell J [215]-[216] held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.
13. The Tribunal may not grant an enabling order unless "satisfied" of the matters referred to in s 30(1A). That requires, at a minimum, that the Tribunal has made up its mind and reached a conclusion, based on the evidence, about the particular matters in sub-paragraphs (a) and (b): Children's Guardian v CVE [2017] NSWSC 1342 at [23], [26].
14. The reasonable person, for the purposes of s 30(1A)(a), is a person with knowledge of the matters before the Tribunal, which is a person privy to all the evidence before the Tribunal. The relevant question is whether a reasonable person, knowing what the Tribunal knows, would allow his or her child to have unsupervised direct contact with the applicant: DAR v Children's Guardian [2018] NSWSC 942 at [56]-[57].
15. In Secretary, Department of Justice v LMB [2012] VSCA 143 at [25]-[26] the Victorian Court of Appeal explained the operation of the "public interest" test in s 26(3) of the Working with Children Act 2005 (Vic), which operates to similar effect as s 30(1A)(b) of the WWC Act, in the following terms (footnotes omitted): [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children) have their suitability to do so checked by a government body'. [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.
16. In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136]-[137] said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent's submissions as to weight). A reasonable person whilst approaching the manner with some caution would find that any risk was insufficient to cause them to have concerns about access to their child.
17. In CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 at [75] the Tribunal held that the concept of public interest gives priority to the broader interests of the community over private interests, and referred to ZZ where Bell J at [202] adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.
18. In ZZ at [202] Bell J referred to the relevance and importance of rehabilitating offenders. Bell J at [203] said: [203] In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.

Jurisdiction

1. We are satisfied that the Tribunal has jurisdiction under s 27 of the WWC Act to undertake an administrative review of the Decision under the ADR Act. When reviewing the Decision, the Tribunal is exercising its administrative review jurisdiction under ss 28(2)(b) and 30 of the CAT Act.

The written submissions of the applicant

1. In his written submissions, the applicant sets out the applicable legal principles, the reasons he denies that he committed the first to fifth offences, and extracts of the psychological assessment report dated 25 September 2019 of Ms Pratley.

The oral submissions of the applicant

1. In his oral submissions, the applicant: 1. denied that he committed the first to fifth offences; 2. said that he does not pose a risk to the safety of children; 3. explained the reasons he could not have committed the first to fifth offences; 4. said that there was no other conduct giving rise to any suspicion that he poses a risk to the safety of children.

The written submissions of the respondent

1. In her written submissions, the respondent after setting out the background, the relevant legislation and the applicable legal principles, the written evidence of the applicant and the respondent including evidence at the criminal trial and information provided by the applicant in relation to his application for a WWCC clearance: 1. sets out the findings that are open to the Tribunal as to risk (italics in original): 32. Based on the totality of the evidence before the Tribunal, it is submitted that the Tribunal may find that the [first to third offences] did not occur on the dates alleged by the Complainant. However it remains open to the Tribunal to find that the Applicant exposed the Complainant to sexual and/or inappropriate behaviour on a regular basis. This is because: a. It is evident that the Applicant conducted himself in an inappropriate manner towards the Complainant and made sexual comments about her. Such conduct would support a view that the Applicant is unable to maintain appropriate boundaries with children. b. The Applicant had known the Complainant's family for a number of years and frequently visited her home. He also fixed the computer in her bedroom from time to time. Therefore the opportunity to assault the Complainant could have presented itself during this time. c. The Applicant's explanations for the [first to fifth offences] appear to suggest that every individual who supported the charges being made against him had a personal motivation against him to do so. At no point does the Applicant accept that he conducted himself in an inappropriate manner around the Complainant or that at the very least, his conduct may have caused the Complainant to make the allegations against him. At no point does the Applicant accept that his inappropriate behaviour may have contributed towards members of the Complainant's family feeling uncomfortable in his presence. 33. With respect to the [fourth and fifth offences], the evidence at the trial was inconclusive in relation to the integrity of the MSN Messenger chat logs. This resulted in the hung jury. While the Respondent accepts that there may be some inconsistencies with respect to the integrity of the chat logs, it is submitted that the Tribunal would find that the Applicant did in fact use MSN Messenger to groom the Complainant as: a. The Applicant agrees that he used MSN Messenger to speak with the Complainant from time to time. He accepted that he spoke to her on 25 July 2006 during which he suggested that she wear a skirt, demonstrating that he crossed appropriate boundaries with the Complainant. b. The Applicant's explanation with respect to having downloaded the "R-Wipe and Clean" software is unconvincing. If the Applicant had been downloading pornography it is unclear why it was not possible for him to simply delete the folders(s) that it was saved to instead of attempting to wipe clean the hard drive. While the specific details of the jury's deliberation about this issue is unknown, save that they could not decide whether or not he had attempted to groom the Complainant via MSN Messenger, it is submitted that the Tribunal may infer that the Applicant sought to delete the MSN chat logs saved on his hard drive so that any evidence of his communications with the Complainant would not be found. 34. Based on the information set out above and after considering the factors under s. 30(1) of the WWC Act as discussed below, it is submitted that the Tribunal would find that the Applicant poses a risk to the safety of children. 1. addresses the matters in s 30(1) of the WWC Act; 2. addresses the matters in s 30(1A) of the WWC Act (italics in original): 59. The Respondent submits that a "reasonable person" with knowledge of the information set out above would not allow his or her child to have direct, unsupervised contact with the Applicant whilst he was engaged in child-related work. This is because a "reasonable person" would note that: a. The Applicant does not appear to have insight into how his behaviour towards the Complainant was sexual and/or inappropriate which suggests that he is unable to maintain appropriate boundaries with children. b. The Applicant does not appear to have insight into the vulnerabilities of the Complainant and how he was in a position of authority over her as her martial arts instructor and a friend of her family. c. The Applicant appears to have been selective when providing information for the purposes of his psychological risk assessment. 60. The Respondent further submits that pursuant to s. 30(1A)(b) of the WWC Act, it is not in the public interest for the Tribunal to grant the Applicant a Clearance as: a. If the Applicant was to behave inappropriately towards any child including any of his students, in the future, the long-term psychological impact on them would be substantial. b. If the Applicant was to obtain a Clearance it would enable him to work directly with children without supervision in any volunteer capacity. 1. submits that the Tribunal should affirm the Decision.

The oral submissions of the respondent

1. In her oral submissions, the respondent drew attention to the following matters: 1. she neither agrees or disagrees that the applicant poses a risk to the safety of children; 2. she said that limited weight should be placed on the other behaviour; 3. she agrees that the applicant had shown sufficient insight about his behaviour at the time of the alleged commission of the first to fifth offences and the other behaviour; 4. she agrees that the applicant had shown sufficient understanding of child protection issues and strategies; 5. she agrees that the character references are the best indication of the matters in s 30(1A)(a) of the WWC Act; 6. she agrees that the Tribunal may find it is in the public interest to grant a WWCC clearance to the applicant under s 30(1A)(b) of the WWC Act; 7. she agrees that the Tribunal in engaged in a balancing exercise.

Assessment of the evidence of the applicant

1. We find the applicant to have been a truthful witness. It was clear from his evidence that the applicant has insight about his behaviour at the time of the alleged commission of the first to fifth offences and alleged engagement in and the other behaviour, and understanding of child protection issues and strategies.
2. We are satisfied that the applicant wishes to contribute to the community by teaching martial arts to children as well as being involved in activities with his children such a coaching sports teams.

Did the applicant commit the first to fifth offences?

1. We are satisfied that the applicant did not commit the first to third offences having regard to his acquittal by the jury and the applicant's explanation as to the reasons why he could not have committed these offences.
2. We are satisfied that the applicant did not commit the fourth and fifth offences having regard to the opinion of Mr Bell and the applicant's explanation as to the reasons why he could not have committed these offences. We attribute weight to the fact that further exculpatory evidence became available after the criminal trial.

Did the applicant engage in the other behaviour?

1. We are satisfied that the applicant did not engage in the other behaviour having regard to his denial when giving oral evidence.

Consider of the factors in s 30(1) of the WCC Act

1. We have set out below our findings as to the factors in s 30(1) of the WCC Act (other than the factor in s 30(1)(j1) which is inapplicable).

The seriousness of the matters that caused a refusal of a clearance and imposition of the interim bar, the period of time since those matters occurred and the conduct of the person since they occurred (s 30(1)(a) and (b))

1. The first to fifth offences are serious as they involved charges of a sexual nature involving a child. Similarly, the other behaviour so far as it involved conduct of a sexual nature involving a child or in public is serious. These matters occurred 13 years ago between January and August 2006. The applicant has not engaged in conduct of the same nature and has not been charged with any criminal offences since that time. Until he became subject to the interim bar the applicant continued to teach martial arts to children.

The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant's present age (s 30(1)(d)-(g))

1. The first to fifth offences and other behaviour occurred when the applicant was 26 years old. The complainant was 13 years old at the time of the first to first to third offences, and 14 years old at the time of the fourth and fifth offences. The difference in age between the applicant and the complainant was 13 years. The applicant knew the complainant was a child.
2. Apart from her young age, the complainant was vulnerable for the following reasons: 1. the applicant was close friends with the complainant's uncle who lived at her house and was a family friend of her parents; 2. the applicant taught the complainant martial arts for a period of time and was therefore a figure of authority over her; 3. the complainant was likely to have been suffering from low self-esteem as a result of being teased at school and being overweight.
3. The applicant is currently 40 years old.

The seriousness of the applicant's criminal record, the conduct of the applicant since the offences occurred, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(h-i))

1. There are no other records in the applicant's criminal history except for those relating to the first to fifth offences. He has not been charged with any criminal offences since these offences.
2. We are satisfied that there is a very low likelihood of the applicant engaging in conduct of the same nature as the first to fifth offences and the other behaviour.

Information given by the applicant in, or in relation to, the application (s 30(1)(j))

1. We regard as significant and have relied upon the extensive evidence provided by the applicant.

Any other matters that the Children's Guardian considers necessary (s 30(1)(k))

1. We do not consider that any matters raised by the respondent demonstrate that the applicant poses a risk to the safety of children.

Does the applicant pose a risk to the safety of children?

1. Having regard to our finding that the applicant did not commit the first to fifth offences and engage in the other behaviour, we are satisfied that the applicant does not pose a risk to the safety of children.
2. If, contrary to our finding, the applicant did commit the first to fifth offences and engage in the other behaviour, we would have been satisfied on the basis of the conduct considered as a whole that he applicant does not pose a risk to the safety of children having regard to the unchallenged opinions of Ms Pratley.

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work (s 30(1A)(a))?

1. The information that a reasonable person would require to properly consider the test in s 30(1A)(a) of the WWC Act whether "a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work" is the evidence set out above.
2. Having regard to all this evidence, and particularly six character references for the applicant, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work. The reasonable person would have particular regard to the following matters: 1. the elapse of time since the first to fifth offences and the other behaviour; 2. the applicant has no criminal history, and has not been charged with any offence since the first to fifth offences; 3. the applicant's referees have confidence in him, and one of them has trusted him to care for his own children without incident.

Is it in the public interest to make the orders sought by the applicant (s 30(1A)(b))?

1. We are satisfied that it is in the public interest to make the orders sought by the applicant for the following reasons: 1. the applicant should not be turned away from his commitment to teach martial arts to children as well as being involved in activities with his children such a coaching sports teams; 2. the applicant should be encouraged to use his experience and expertise for the benefit of others through teaching martial arts to children.

The correct and preferable decision

1. We have determined that the correct and preferable decision having regard to the material before us is grant a WWCC clearance to the applicant pursuant to s 18(2) when read with s 5B of the WWC Act, and accordingly have decided to set aside the Decision and in substitution to grant a WWCC clearance to the applicant. The effect of this decision is that the interim bar ceases to have effect pursuant to s 17(4)(b) of the WWC Act.

Orders 1. Decision of the respondent made on 9 May 2019 refusing to grant the applicant a working with children check clearance (WWCC clearance) pursuant to s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) is set aside and in substitution a decision to grant a WWCC clearance to the applicant. 2. An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters.

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

Amendments 04 February 2020 - Correction of Coversheet Decision 04 February 2020 - Coversheet and end of decision orders corrected 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: 04 February 2020