EPP v Children's Guardian

Prohibition order

1. Due to the sensitive nature of these proceedings and to protect the identity of an alleged child victim, an order was made on 8 April 2021 under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) that 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 is prohibited. To give effect to this order, the pseudonym 'EPP' has been used for the applicant's name and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed. Geographic locations, certain calendar dates associated with proceedings in the Local and District Courts, as well as the names of institutions or entities, have also not been disclosed to protect against identification of any person associated with these proceedings.

Material and evidence before the Tribunal

1. In determining this matter, we have taken into account the following material and evidence before the Tribunal.
2. The following documents were filed on behalf of the applicant: 1. Application for administrative review attaching a copy of the respondent's decision dated 10 February 2021; 2. Bundle of documents comprising 51 pages which contain: 1. Psychological report of Bradley Steven Jones (Mr Jones), Forensic Psychologist, dated 20 September 2021 (pp 1-26); 2. Various documents relating to medical procedures undergone by the applicant between 2005 and 2012 (pp 27 - 32): 3. Affidavit of the applicant dated 21 September 2021 (pp 33-37); 4. Affidavit of the applicant's wife dated 20 September 2021 (pp 38-40); 5. Affidavit of ES, the applicant's sister, dated 20 September 2021 (pp 41-43); 6. Affidavit of RS, another sister of the applicant, dated 20 September 2021 (pp 44-45); 7. Affidavit of MS, another sister of the applicant, dated 21 September 2021 (pp 46-48); 8. Affidavit of JS, the applicant's nephew, dated 21 September 2021 (pp 49-51), (altogether, marked Exhibit A1); and 1. Outline of submissions dated 24 October 2021, filed on 4 November 2021.
3. The following documents were filed on behalf of the respondent: 1. Volumes 1 and 2 comprising 696 pages of documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (ADR Act) filed on 12 April 2021 (marked Exhibit R1); 2. Documents filed on 6 May 2021 pertaining to the applicant's employment (marked Exhibit R2); 3. Bundle of further documents filed on 19 October 2021 (marked Exhibit R3); and 4. Submissions of the Children's Guardian filed on 9 November 2021.
4. Oral evidence was given during the hearing by: 1. the applicant; 2. the Forensic Psychologist, Mr Jones.

Issue for determination

1. In determining this application, the Tribunal is to decide whether on the balance of probabilities the applicant poses a real and appreciable risk to the safety of children. In deciding this issue, the paramount consideration is the safety, welfare and well-being of children and, in particular, protecting them from child abuse: s 4 of the Act.
2. It is relevant to note that in understanding the Tribunal's statutory task in these proceedings, the applicant is not a disqualified person. While the applicant was a disqualified person during the period when the charges were laid against him, he no longer has that status since the charges were 'no billed'. As a result, this is not a case where the Tribunal must consider whether to grant an enabling order under s 28 of the Act which would have the effect of treating the applicant as if he was not a disqualified person with respect to the Alleged Offences.
3. The Tribunal's task is to stand in the shoes of the Children's Guardian and make a fresh decision. The Tribunal is not conducting a review of the Children's Guardian's Decision, and is not required to concern itself with whether the Children's Guardian's Decision was affected by error. For the purposes only of reference and completeness, we provide a short summary of the respondent's Decision in these reasons.
4. The allegations, without question, concern serious offences under the Crimes Act. In circumstances where there has been no finding of fact nor any testing of the allegations in a court of law, the task of the Tribunal is to assess the weight and significance of the allegations, and this includes the circumstances where the allegations were partially recanted by the complainant. In these proceedings, it is not appropriate for the Tribunal to make a finding that the allegations can be proven, even on the balance of probabilities. The task of the Tribunal is to decide, on all of the evidence before it, whether or not the allegations give rise to sufficient doubt such that the Tribunal considers there is sufficient risk to refuse to grant a clearance.
5. In determining whether an applicant is likely to pose a risk to the safety of children, the Tribunal is frequently aided by a report from a psychiatrist or psychologist. The applicant provided the report of Dr Jones (Exhibit A1, pages 1-26), and this is discussed in these reasons under the heading "Consideration" (specifically, 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)(i) of the Act).
6. When determining an application under Part 4 (Reviews and Appeals) of the Act, including an application pursuant to s 27, the Tribunal must consider the matters set out in s 30(1) of the Act. Then, if the Tribunal is minded to make an order enabling the applicant to work with children, it must satisfy itself on the two-part test set out in s 30(1A) of the Act (known as the 'reasonable person' test and the 'public interest' test).

The Decision of the Children's Guardian refusing to grant a WWCC clearance

1. As noted above, for reference and completeness, we summarise the Children's Guardian's Decision which considered the allegations of grooming and sexual abuse of the applicant's nephew when he was between 8 and 13 years old, over a 5 - 6 year period. The alleged conduct was considered to be serious, including showing adult pornography to the complainant, asking him to touch or rub the applicant's penis and testicles and masturbating in the presence of the complainant.
2. The Children's Guardian also took into account the complainant's recantation of some of his allegations and noted that the DPP made attempts nonetheless to proceed with the prosecution on the basis that the complainant was considered to be credible, based on his clear, consistent and detailed disclosures. The complainant's mother gave evidence to Police to support that the complainant had previously disclosed the allegations to his eldest brother and that the complainant was alone with the applicant with the door closed, providing an opportunity for the alleged abuse to occur. The Children's Guardian noted that the Department of Communities and Justice (DCJ) did not interview the applicant and had substantiated the allegations based only upon the complainant's disclosures.
3. The Police found the applicant had accessed written online erotic stories involving teenagers having sex with adults. The Children's Guardian noted that the applicant admitted to accessing online stories involving sexual activity between teenagers and adults.
4. The Children's Guardian took into consideration the applicant's positive history of engagement in child protection related employment, and noted that the complainant's allegations did not occur in the context of his work.
5. The Children's Guardian considered the established trusted relationship between the complainant and his family, with the applicant. In its assessment, the alleged pattern of behaviour involved: 1. the complainant being allowed to play on the applicant's Xbox, with the applicant using this as a tool or bribe to manipulate the complainant to touch the applicant inappropriately; 2. testing personal boundaries and encouraging increasingly sexualised physical contact.
6. Although the charges were ultimately withdrawn, the Children's Guardian's assessment of risk concluded that while no affirmative finding could be made in relation to the allegations, it could not rule out the possibility that the incidents occurred as alleged because the charges: 1. were recent (in the last 3 years); 2. covered an extensive period of 5-6 years; 3. indicated a pattern of grooming behaviour of a child under the age of 14 years; 4. were not such that it was considered plausible that a child of the complainant's age would have a sufficient understanding of the grooming process to fabricate details of grooming which align so closely with researched grooming behaviours.

Overview of the applicant's personal and professional life

1. The applicant is married, with one child. His affidavit focussed heavily upon his early life as a child and his body insecurities which led him to seek out various medical procedures with plastic surgeons. He said that his body insecurities and post-surgery eating regimen led to different insecurities and that he has worked through these issues with the support of his wife. He said that the allegations made against him had set him back significantly with respect to his health issues and insecurities.
2. At the time the allegations were made, the applicant had no dependent children and his occupation was described in the s 58 bundle as a counsellor who worked as a child psychologist. In his interview with Police, he described his employment as a "behaviour clinician". He had completed a Bachelor of Psychology in 2013 and had been registered as a provisional psychologist since June 2016. He commenced a postgraduate study arrangement which requires him to sit an exam in order to obtain his general registration as a psychologist.
3. After receiving a complaint concerning the nephew's allegations, the Psychology Council of NSW suspended the applicant's registration as a health practitioner. That suspension was subsequently lifted and he was again registered to practice as a psychologist on 22 July 2020.
4. The applicant's employment history included appointment as a Support Worker and then a Case Manager with a registered disability and foster care organisation from November 2012 to March 2015, both of which roles involved contact with children and young people. In connection with that period of employment, he was involved in an investigation in relation to an allegation of theft, however there was insufficient evidence to identify the applicant as being irrefutably responsible. His employment was subsequently made redundant in March 2015.
5. The applicant then worked as a Therapeutic Caseworker within a major church-based community services organisation. In around October 2015 it was alleged that he had failed to respond to a significant child protection issue appropriately and in a timely manner, specifically that he had failed to respond to the reasonable and lawful instruction of a supervisor in a timely manner. The applicant was invited to attend a meeting to discuss the issue. His oral evidence in these proceedings was that he did not have a recollection of the issue and that he had ceased working for the organisation because his views on the therapeutic treatment of children did not align with those of the organisation.
6. Pending registration as a psychologist, the applicant then worked as a provisionally registered psychologist from around November 2015 until 11 January 2020. This included employment as a behaviour Support Clinician/Provisional Psychologist and then subsequently as a Senior Practitioner Behaviour Support/Provisional Psychologist, both of which roles included the direct support of children and young people with disabilities aged 0-24 years and their families/carers. The applicant's employment ended when the organisation who employed him was notified on 16 January 2018 that a bar had been placed on his WWCC.
7. After his employment ended, the applicant opened a new business and has been engaged generally in writing policies, conducting risk assessments for persons going into certain fields of occupation, and some public speaking type work which he acknowledged was not well paying. This has placed pressure on his family, requiring his wife to work until close to the birth of their baby and possibly requiring her to return to work quite soon. It was evident to the Tribunal that the prospect of this caused the applicant some concern.
8. The applicant gave oral evidence that he requires a WWCC clearance in order to secure employment in anything in which he has been trained. He said that a criminal history check was insufficient for his employment aspirations and that he had been rejected time and time again after his employment had ended because he does not have the required clearance for his desired employment.

Jurisdiction of the Tribunal

1. The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3: 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. The paramount consideration in the operation of the Act is set out in s 4: 4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.
3. Having regard to that paramount consideration, the jurisdiction of the Tribunal under s 27 of the Act therefore remains protective and not punitive in nature. The object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children: CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34].

Meaning of "risk to the safety of children"

1. "Children" is defined in s 5(1) of the Act to mean "persons under the age of 18 years".
2. The meaning of "risk to the safety of children" is defined in s 5B of the Act to mean a "real and appreciable risk to the safety of children." In considering this critical aspect of the meaning of "risk", guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSWSC 949 (V's case) at [42] (as cited with approval in BKE v Office of Children's Guardian [2015] NSWSC 523 (BKE) at [26]): "…what one is looking for is whether, in all of 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 children. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children"."
3. The Tribunal must consider whether a clearance, if granted, will create a "real and not fanciful" risk to the safety of children: CXZ v Children's Guardian [2020] NSWCA 338 at [26].

Child-related work requires a WWCC clearance

1. The meaning of "child-related work" is set out in s 6 of the Act. Work that is referred to in subsection 6(2) of the Act that involves direct contact by a worker with a child or children and that contact is a usual part of and more than incidental to the work, is defined as "child-related work" for the purposes of the Act.
2. The Tribunal notes the applicant's aspiration, if granted a clearance, to work as a psychologist. He expressed an interest in contributing to society as he believes he had done so previously. He said he had been trained, albeit informally, in child protection, treating trauma, and physical and sexual abuse. Clearly, the applicant's aspirations for employment involve a number of activities that variously fall within the meaning of "child-related work" including s 6(2)(a), s 6(2)(b), s 6(3)(c), s 6(3)(e) of the Act, and potentially other relevant services for children as prescribed by the Child Protection (Working with Children) Regulation 2013. Accordingly, he requires a clearance.

Requirement for the Children's Guardian to be satisfied that a person is not a risk to the safety of children

1. Under s 18(2) of the Act, the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless it is satisfied that the person poses a risk to the safety of children.
2. As noted previously, the charges against the applicant relate to offences which are specified as disqualifying offences in clauses 1(e) and 1(h) of Schedule 2 to the Act. Accordingly, the respondent was required to undertake a risk assessment of the applicant, guided by the provisions of s 15(4) of the Act.
3. The result of that risk assessment was that the respondent was satisfied that the applicant poses a real and appreciable risk to the safety of children and accordingly refused the applicant's WWCC clearance on 10 February 2021.

Neither party bears an onus of proof in these proceedings

1. Neither the applicant nor the respondent bears an onus of proof in relation to the application: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], per Senior Member Anderson. This differs from the presumption in s 18(7) of the Act in proceedings where an enabling order is sought.

Statutory obligation to fully disclose relevant matters to the Tribunal

1. Pursuant to s 27(4) of the Act, the applicant "must fully disclose to the Tribunal any matters relevant to the application."

The task for the Tribunal in determining the "correct and preferable" decision

1. The Tribunal's task is not to undertake a review of the respondent's Decision. The Tribunal must determine the "correct and preferable" decision with regard to the material before it, including material that may not have been before the respondent, and the applicable law: s.63(1) of the ADR Act; YG & GG v Minister for Community Services [2002] NSWCA 247 at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children's Guardian [2015] NSWCATAD 91 at [14], per senior Member Anderson.
2. Subsection 63(2) of the ADR Act allows the Tribunal, for the purpose of determining an application, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
3. In determining an application, understanding the effect of subsections 63(1) and 63(2) of the ADR Act, the Tribunal must not simply "stand in the shoes" of an administrator. As explained in DYH v Public Guardian [2021] NSWCATAD 136 (DHY) at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator's decision: "The effect of these two subsections is sometimes characterised as the Tribunal being required to "stand in the shoes" of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at [530] and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 at 77."

The approach to fact finding and the assessment of risk

1. In determining the application, the Tribunal is required to consider "the totality of the evidence": BKE at [28] citing The Commissioner for Children and Young People v IK [ 2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the "cumulative effect" of the matters before it: CYY at [69]-[71].
2. In relation to the assessment of risk, the Tribunal is bound to follow the decision in BKE at [33]. Alleged incidents may be found to have occurred on the balance of probabilities having regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 366 or they may be found to have not occurred. Nonetheless, Justice Beech-Jones said at [33]: "Thus in such cases 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."
3. Relying on the analysis in CXZ v Children's Guardian [2020] NSWA 338 (CXZ) at [51], a "very many cases" will not lend themselves to definitive factual determination. Where an allegation is neither "well founded" nor "groundless", this Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].

Mandatory criteria for determining an application

1. In determining this application, the Tribunal must consider the matters set out in s 30(1) as set out below: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part - (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's 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.
2. In addition, if the Tribunal is considering making an order which has the effect of enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the Act: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that - (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.

First limb of the two-part test under s 30(1A)(a) - the "reasonable person" test

1. The first limb of the two-part test is known as the "reasonable person" test. It requires the application of an objective standard based upon the views of the "reasonable person". It assumes that the "reasonable person" is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY's case at [26].

Second limb of the two-part test under s 30(1)(b) - the "public interest" test

1. The second limb of the two-part test is referred to as the "public interest" test. It must be considered in the context of s 4 of the Act, namely 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: CYY's case at [74].
2. When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary, Department of Justice [2013] VSC 267 at [202] and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY's case at [75].

Possible outcomes of an administrative review

1. Subsection 63(3) of the ADR Act sets out the range of possible outcomes of an administrative review by this Tribunal. In determining an application, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."
2. Additionally, by operation of s 65(1) of the ADR Act, at any stage of proceedings to determine the application the Tribunal may remit the decision to the administrator who made it, for reconsideration.

Tribunal's Assessment of Risk

1. In assessing whether the applicant poses a risk to the safety of children, this Tribunal must have regard to the paramount consideration under s 4 of the Act, namely, the safety, welfare and well-being of children and protecting them from child abuse. Further, and importantly, in our consideration of the totality of the evidence before it, this Tribunal has regard to the conduct of the applicant which goes beyond the scope of the alleged criminal charges which were 'no billed'.

Mandatory criteria considered under s 30(1)(a)-(k) of the Act

1. The evidence under each of the mandatory criteria headings in s 30(1)(a)-(k) of the Act, is discussed below.

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: s 30(1)(a)

1. In addressing the seriousness of the offences, since this matter falls within the category of cases where it is not possible to definitively determine the alleged conduct, we must decide whether, on the evidence before us, the possibility that the conduct occurred justifies a finding that there is a relevant risk to the safety of children: CXZ at [52].
2. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].
3. As per Simpson AJA in CXZ at [54], referring to the decision of Beech-Jones J in BKE at [33]: "… Thus in such cases it may be that ]the Tribunal] can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, ]the Tribunal] ay 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, ]the Tribunal] 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."
4. In this matter, since the Alleged Offences have not been tried in a court of law and the charges were withdrawn, we consider that our assessment of risk will depend upon a number of things, including: 1. the seriousness of the allegations made by the complainant and any evidentiary support for the allegations; 2. the complainant's partial retraction of allegations and any evidentiary support that goes towards explaining the reasons or motive for the retraction and the extent of the retraction; 3. the extent to which the overall conduct of the applicant is relevant to our assessment as to whether he poses a risk to safety of children.

Issue 1: The seriousness of the allegations

1. The Alleged Offences were serious offences under the Crimes Act as alleged in the Indictment (pp 123 - 125 of Exhibit R1): 1. that between 1 January 2013 and 30 April 2014 the applicant engaged in conduct that exposed indecent material to the complainant being a child under the age of 14 years, namely 8 or 9 years of age, with the intention of making it easier to procure him for unlawful sexual activity: s 66EB(3) of the Crimes Act; 2. that between 1 January 2013 and 30 April 2014, the applicant committed an act of indecency with the complainant a person then under the age of 10 years, namely, 8 or 9 years of age: s 610(2) of the Crimes Act; 3. that between 1 January 2013 and 30 April 2014, the applicant committed an act of indecency with the complainant a person then under the age of 10 years, namely, 8 or 9 years of age: s 610(2) of the Crimes act; 4. that between 1 January 2013 and 30 April 2014, the applicant incited the complainant to have sexual intercourse, who was at that time a person under the age of 10 years, namely, of the age of 8 or 9 years: s 66A(1) of the Crimes Act, s 80G of the Crimes Act; 5. that between 1 January 2013 and 30 April 2014, the applicant committed an act of indecency with the complainant, a person then under the age of 10 years, namely, 8 or 9 years of age: s 610(2) of the Crimes Act; 6. that between 1 June 2017 and 10 January 2018, the applicant engaged in conduct that exposed indecent material to the complainant being a child under the age of 14 years, namely 12 or 13 years of age, with the intention of making it easier to procure him for unlawful sexual activity: s 66EB(3) of the Crimes Act; 7. that between 1 June 2017 and 10 January 2018, the applicant did assault the complainant and at the time of such assault committed an act of indecency on the complainant a child then under the age of 16 years namely, 12 or 13 years of age: s 61M(2) of the Crimes Act; 8. that between 1 June 2017 and 10 January 2018, the applicant did assault the complainant and at the time of such assault committed an act of indecency on the complainant a child then under the age of 16 years namely, 12 or 13 years of age: s 61M(2) of the Crimes Act; 9. that on 10 January 2018, the applicant engaged in conduct that exposed indecent material to the complainant being a child under the age of 14 years, namely 13 years of age, with the intention of making it easier to procure him for unlawful sexual activity: s 66EB(3) of the Crimes Act.
2. The respondent's submissions helpfully set out a broad description of the alleged conduct from around 2012 or 2013 over the period leading to an incident on 10 January 2018 following which the complainant made disclosures to his parents and the Police.
3. During family gatherings, the complainant began visiting the applicant's granny flat for the purpose of playing with the applicant's Xbox. On the first occasion, the applicant permitted the complainant to use the Xbox if he gave the applicant a back massage, to which the complainant agreed. This pattern of behaviour continued for several weeks.
4. On the fourth occasion, the complainant alleged that he could see the applicant watching pornographic videos on his laptop. The complainant alleged that the applicant invited him to look at heterosexual intercourse on the applicant's laptop. This was the subject of the first charge, being Grooming in contravention of s 66EB(3) of the Crimes Act.
5. On the fifth occasion, during the routine massages requested by the applicant, the applicant allegedly escalated his requests, asking the complainant to massage him on his testicles and penis on the outside of his clothing. The complainant alleged that the applicant asked him to rub his penis quickly, after which he asked the complainant to provide him with some tissues which the applicant used to wipe the inside of his shorts. This was the subject of the second charge, being Aggravated Act of Indecency in contravention of 2 610(2) of the Crimes Act.
6. The pattern of behaviour allegedly continued. On another occasion, in order for the complainant to play the Xbox, the applicant requested a massage and this involved asking the complainant to play with his testicles and suck his penis. The complainant refused but engaged in rubbing the applicant's genitals until he ejaculated. That incident was the subject of the third, fourth and fifth charges, being two charges of Aggravated Act of Indecency in contravention of s 610(2) of the Crimes Act, and one charge of attempt to have sexual intercourse with a child under the age of 10 in contravention of s 66B of the Crimes Act.
7. By around December 2016, the family gatherings had reduced in frequency and the applicant did not see the complainant for some time until the applicant began visiting the complainant's home on Wednesday evenings before or after visiting a client in the area. The complainant alleged that on one of those occasions, the applicant showed him several pornographic videos including of homosexual intercourse and asked the complainant if his penis was hard, and touched the complainant's penis on the outside of his clothing to see if his penis was erect. It was alleged the applicant then began to masturbate himself under his clothing and placed the complainant's hand on the applicant's erect penis on the outside of his clothing and continued to masturbate until he ejaculated. That incident was the subject of one further charge of Grooming in contravention of s 66EB(3) of the Crimes Act, two charges of Aggravated Indecent Assault in contravention of s 61M(2) of the Crimes Act, and one charge of Act of Indecency in contravention of s 61N(1) of the Crimes Act.
8. The final charge concerned an incident at the complainant's home on 10 January 2018 during one of the applicant's regular visits. The complainant alleged that the applicant showed several pornographic videos on his phone and then, after the complainant had left the room for a short time to use the bathroom, the applicant alleged asked him "did you wank?" That incident was the subject of one further charge of Grooming in contravention of s 66EB(3) of the Crimes Act.
9. Notwithstanding the complainant's partial retraction of the allegations, the prosecution proceeded on the basis that his original disclosure of the alleged offending was detailed and was considered to be credible. In proceedings in November 2018 in the Local Court, the applicant was committed to trial for 9 of the 11 charges before the District Court of New South Wales.
10. Subsequently, on 8 April 2019, the charges against the applicant were 'no billed' (that is, the prosecution elected not to proceed with the charges), and the applicant was discharged.

Issue 1: Seriousness of the allegations and evidentiary support

1. On any view, the allegations concern serious offences under the Crimes Act. They described an ongoing course of conduct of increasing sexual severity, with repeated instances of aggravated indecent assault and attempts to elicit sexual intercourse (namely, fellatio) from the complainant at a time when the complainant was aged 8 or 9, up until the time he was approaching 14.
2. On the day of the incident the subject of the final charge, the complainant disclosed the alleged course of conduct to his mother. The following day, on 11 January 2018, the complainant (then aged 13, turning 14) disclosed the allegations to Police. The Police record of interview contained 1772 questions and the complainant's responses.
3. EPP was then also interviewed by Police on 11 January 2018. His mobile iPhones were seized and the applicant volunteered that he also had a laptop and another mobile phone which were handed over.
4. The applicant said that he had learned that morning from his mother about allegations he had sexually assaulted and molested the complainant. The applicant said to Police that: "…as a person who works protecting children I understood that there is gunna be a consequence, that I didn't realise it was gunna be this severe, I honestly thought you would check my stuff, you would check me and then everything would be OK…I'm more than happy as you see I was cooperating I've given you all my electronics, all my technology. I'm happy to take a polygraph. I'm happy to do whatever it is that will help clear me."
5. The applicant made a number of admissions about his consumption of online homosexual pornography containing graphic sex scenes, by visiting random websites. He denied accessing child pornography. He differentiated between a child and an adult based on looks, and acknowledged that a 17 year old is a child. He acknowledged that his access of online pornography for arousal purposes was recent.
6. The applicant denied ever having intentionally asking a child to look at porn. He said that he had been watching a movie containing graphic male on male and hetero sex scenes and that he had turned it off when his nephew walked into the granny flat.
7. When questioned by Police as to whether he had asked his nephew "did you wank?", the applicant said "that's about right".
8. The applicant described the family dynamic as one in which it was normal for family members to give massages to each other. He said they were mostly neck and shoulder massages, and to the hands and feet.
9. He also said that on several occasions the complainant would allege that the applicant had touched him, to get his own way, and threaten to say he had been physically assaulted, sexually assaulted, denied food and poisoned. The applicant said that the complainant had not made any threats before disclosing the allegations, and he thought the allegations were made because the complainant did not want to be babysat.
10. Submissions were made on behalf of the respondent casting doubt upon the truthfulness of the applicant's statements to Police about never allowing himself to be alone with the complainant or the amount of time that he would be alone with him, or the amount of time he would be with other persons from time to time. Submissions were also made about whether the door to a games room in the complainant's house was "always open" or whether it was both opened or closed. On balance, we consider the complainant's general descriptions (in his initial disclosure of the allegations) of how the family members congregated, dispersed and engaged in various activities when they gathered together, to be an unsophisticated and honest account of their movements. We have therefore formed the view that there were short periods of time when the applicant was alone with the complainant and that those periods of time would have provided sufficient opportunity for the alleged conduct to occur. We attach a reasonable amount of weight to this, as evidence supporting the credibility of the allegations.
11. Submissions were also made on behalf of the respondent about the history and nature of threats made by the complainant to various persons over time. Detailed submissions were also advanced on behalf of the respondent regarding the applicant's scars as a consequence of his surgeries and the significance of whether the complainant's failure to make reference to those when giving his account of allegations materially impacted upon the veracity of his account. In light of multiple inconsistencies across the evidence and a degree of vagueness on these various matters, we do not consider they greatly assist the Tribunal in allocating weight to either the allegations or the partial retraction, for the purpose of assessing whether the applicant poses a risk to the safety of children.
12. We cannot, however, discard the allegation that the applicant required the complainant to give him massages. In that sense, the allegations concerning the massages are not completely "groundless". However, despite the complainant's partial retraction of the allegations, the lack of detail around which aspects of the conduct is alleged to have occurred, means we are still not placed in a position of being able to assess whether the allegations that the massages involved increasingly sexual activity are "well founded". We are guided by CXZ at [52]: "Nowhere does the High Court say, or suggest, that every individual allegation is to be assessed as either "well founded" or "groundless". Nowhere does the High Court say, or suggest, that all allegations must be treated as falling into one or other of those categories. Indeed, it explicitly says the opposite. In those cases which do not fall into one or other of those categories the court or tribunal must decide whether the evidence is such as to justify a finding that there is a relevant risk."
13. An unacceptable risk of harm may exist independently of a finding on the balance of probabilities that particular conduct took place: FBC v Children's Guardian [2021] NSWCATAD 286 at [160]. Whilst we cannot make positive findings that the applicant did, or did not, engage in the conduct as alleged by the complainant, we are of the view that relevant and material misconduct may have occurred and cannot be dismissed.
14. The applicant told Police that the complainant had a known history of exaggerating events or making threatening accusations. The affidavits of ES, MS and RS all variously refer to an alleged incident at a family gathering in 2013 when the complainant threatened his mother that he would tell everyone at school that she had bashed/hit him. The complainant's mother gave evidence in the committal hearing in November 2018 that her son had a history of making up stories and then qualified her statement that she believed him in relation to his subsequent disclosure that he had exaggerated the allegations.
15. As noted earlier in these reasons, the applicant said to Police that he knew how allegations such as those made against him are regarded and how they proceed. The applicant is an experienced behavioural counsellor and has worked with children who are subjected to trauma and dysfunctional family life for a number of years. He knew he had an obligation to hold himself to standards associated with his profession.
16. The applicant placed the complainant in a compromised and potentially harmful position where he allowed himself to be alone with the complainant for short periods of time, with knowledge of the complainant's alleged pattern of manipulative and threatening behaviour to get his own way. We are of the view that the applicant's level of emotional involvement with the complainant led to a cross-over of the boundaries that he knew should not be breached particularly given his familial relationship with the complainant, the complainant's known vulnerabilities, the applicant's professional qualifications and knowledge of child protection issues, and the applicant's substantial working experience as a behavioural counsellor working with children.
17. We find that the conduct of the applicant was such that there was a relevant risk to the complainant, in light of the following factors and circumstances: 1. the complainant's allegations were detailed and consistent in nature spanning a period of 5 years, and certain details can be reconciled with admissions of the applicant, lending a degree of credibility to the allegations; 2. the applicant acknowledged his pornography habits using a range of electronic devices and mobile phones, and said that his access to pornography as a regular activity was a "big thing" in his life; 3. there were short periods of time when the applicant and the complainant were alone, providing an opportunity for the alleged conduct to occur; 4. the complainant was able to see from his position of playing the Xbox that the applicant was viewing pornographic material on his laptop; 5. the applicant admitted to Police that he engaged in conversation with his nephew where he had said "dirty stuff to him" and engaged in conversation having sexual context with his nephew on one occasion after he went to the bathroom, asking "did you wank?"; 6. it was acknowledged that the arrangement between the applicant and the complainant was that the complainant was permitted to play the Xbox in return for him giving massages to the applicant; 7. in the context of seeking to recant some of the allegations, the complainant explained to the Department of Family and Community Services (FACS) that he had initially made the disclosures to Police because he wanted to stop massaging his uncle. It is a matter of concern that the complainant said he did not feel comfortable telling his uncle that he did not want to massage him anymore. If the massages had simply involved the applicant's head and neck, it is difficult to reconcile the complainant's level of discomfort in addressing this issue with his uncle.

Issue 2: The complainant's partial retraction of allegations

1. One week after disclosing the allegations to his parents and participating in an interview with the Police, the complainant's mother said (to Police) that her son was doing really well, was happy and sleeping again. She told Police that her son (the complainant) had also told her other son about the allegations and that he had sworn to Allah not to say anything. However, the mother also disclosed that her family had been saying that "it's not admissible at court, that it will all be thrown out and they're going to sue us because [the complainant] is making this up." Police Detective Senior Constable Hasler asked the mother whether she believed the complainant was making up the allegations. Her response was "No, he would never lie about something like this."
2. Two weeks after the complainant's disclosure to Police, the mother expressed reluctance to assist further by providing a statement, saying to DCS Hasler: "[The complainant has been really bad, he is feeling really guilty because his uncle is now in gaol. He is saying he wishes he never told anyone what happened. He's not sleeping again. We're having problems with family. [My husband] and I are arguing. I just don't know what to do, it's all gotten too hard."
3. During an interview with an officer of FACS on 14 February 2018, the complainant disclosed that he "felt bad because he had exaggerated things about his uncle because he wanted to stop massaging him and did not feel comfortable telling his uncle he did not want to massage him anymore" and that "only 30% happened and 70% did not".
4. During the committal hearing in November 2018, the complainant's mother gave evidence that her son had lied about some of the allegations. Her evidence is set out below: "He came to us about - in February and told us that he had lied, and that he wanted me to fix the - fix it. He said, "I've lied, mum, and, you know, it wasn't true what I said", and I wanted to take him - he wanted me to take him back to the police … which I did the next day."
5. The mother's evidence was that his son told her he had lied, but that he didn't elaborate further. The cross-examination of the mother drew an acknowledgment that her son had a history of making up stories. Her evidence was, however, that she had tested him and believed that he was telling the truth when he admitted that he had "expressed it [the allegations] wrong".
6. The complainant's hand-written letter of apology to the applicant set out his shame and regret, parts of which are extracted below: "I am so so sorry for what I put (sic) through. Everything I said about you was a lie .. I'm so ashamed of myself ..I even made lies about my parents and our family .. I have tried so hard and went through obstacle courses to fix my mistakes but the dpp are not listening.. I thank god everyday for my supportive parents because when I told them the truth they immediately seeked for help .. I without doubt didn't think that it would've gone this far … I'm telling you this without my parents knowing that .. I wish I could turn back time and tell the truth to them. I can barely focus at school or sleep at night, I'm feeling relieved writing this to you that I'm now able to let you know that I never wanted you in trouble .. that I just didn't want miss out on the fun even though my sister was gonna be with me I was just angry and sad that you were going to babysit me .. you make me continually work .. don't let me play playstation, take the fun out of everything and don't include yourself with anyone .. I really hope this letter gets to you I'm so so deeply sorry and will never lie again .. I hope that after you read this letter you can start to work on forgiving me and build our relationship again .. I love you … and I hope you can understand that I have been wanting to let you know the truth since day 1."
7. On behalf of the applicant, it was submitted that there is nothing in the letter to suggest that the complainant was influenced to write the letter, that the letter is clear and explicit, and that the allegations had no truth in them.
8. No evidence was put before the Tribunal as to the provenance of the letter, when it was written, or how it may have been sent to, or received by, the applicant. It is difficult to assign decisive weight to the letter when it is the subject of such limited evidence. The content also contains some statements that are both internally inconsistent and at odds with comments made by the complainant to an officer of FACS on 14 February 2018. The letter says that everything the complainant said was a lie, whereas he otherwise maintained in his statement to FACS that 30% of the allegations were true. The letter says that the applicant told his parents the truth, and yet it also says that he wishes he could tell them the truth. The letter suggests that the motive for making the allegations was that he didn't want to be babysat and miss out on the fun, yet his statement to FACS was that he didn't want to massage the applicant anymore. These inconsistencies are not matters which can be reconciled. Accordingly, we assign only a small amount of weight to the letter in terms of accepting it as evidence that the complainant's allegations were groundless.
9. On the question of how many or how much of the allegations had happened, the minutes of the meeting with FACS on 14 February 2018 provide only limited insight. The complainant said that he had exaggerated in his interview with Police, that "only 30% happened and 70% did not". He said that he had seen some of the videos on the applicant's computer only because he was looking that way while playing the Xbox. The minutes recorded: "[The complainant] appeared quite anxious, sweating and seeking confirmation stating he wanted this whole thing over with and he spoke with his mum following the interview and felt bad because he had exaggerated things about his uncle because he wanted to stop massaging him and did not feel comfortable telling his uncle he did not want to massage him anymore. [The complainant] advised he exaggerated and kept talking in the interview because he wanted to be believed but only 30% happened and 70% did not."
10. It was argued, on behalf of the applicant, that the complainant's admission about having lied about the allegations are a powerful indication that the allegations are so weak and problematic that it is open to the Tribunal to find there is no reasonable possibility that the conduct occurred. It was further argued on behalf of the applicant that his record of interview with Police and oral evidence contain no evidence of inconsistencies or contradictions, and that the applicant was frank and made appropriate concessions against his interests, including matters that caused him shame and embarrassment.
11. As already noted, on the limited material before us, it is difficult to assess from the complainant's retraction, exactly what percentage of the alleged conduct occurred and what did not. His statement that he wanted to stop massaging his uncle suggests that the massages were a significant issue for him, yet the complainant provides no further clarification. If the original allegations about massages which escalated into sexual activity were true, it can be plausibly argued that the complainant's desire to stop massaging his uncle was a powerful motive for making the allegations in the first place.
12. There is no suggestion that the applicant influenced the complainant or the family in relation to the partial recanting of allegations. The applicant's oral evidence was that he has never spoken with the complainant about the allegations and that he now avoids interacting with him. He first spoke with his sisters when he was incarcerated (around six weeks after) and with his brothers around two and a half months later. In EPP's stated view, his relationship with his family is amicable, although his relationship with the complainant's father is not quite as good as it had been prior to the allegations. He described his relationship with the complainant's mother as being largely unchanged and "good".
13. On balance, the preponderance of evidence supports a finding that the complainant's retraction of the allegations was due to growing family tension over the pending criminal proceedings and the effect of the disclosures upon the applicant, rather than a finding that none of the disclosures can be believed. The complainant was worried about the DPP pressing on with the criminal proceedings. His mother, likewise, did not want the matter to go to Court. The complainant and his mother felt ostracized by the family. The complainant's retraction was not that the conduct the subject of the allegations did not occur, but that he had exaggerated what had occurred (without elaborating further in sufficient detail to provide clarity and certainty about the allegations).
14. On balance, looking at the cumulative effect of the material before us, we find that there is a plausible explanation for the complainant's partial retraction, namely the emotional distress that the prosecution was causing to him and his family. Importantly, we do not regard the partial retraction as an admission that the conduct the subject of the allegations did not occur, but an admission that the conduct was not as severe as first disclosed. Whilst we are not placed in a position to definitively determine whether the alleged conduct occurred, the weight that we have given to the evidence that nonetheless justifies a finding of risk, is not diminished by our consideration of the complainant's partial retraction.

Issue 3: Overall conduct of the applicant and whether relevant to the risk that the applicant poses a risk to the safety of children

1. We now consider the conduct of the applicant which goes beyond the scope of the allegations, in assessing whether he poses a risk to the safety of children.
2. The applicant's electronic devices disclosed that he had accessed three fictional stories on 4 August 2017 involving sexual relationships between adult men and young boys. The stories were accessed at 1.06am, 1.09am and 1.20am. They were, respectively, 5 pages, 4 pages and 11 pages in length. The first story involved a 13 year old boy and a man having sex. The second story involved a teenage boy having sex with his school teacher and made reference to a "scout camp". The third involved a relationship between a boy and his stepfather, whom he referred to as "Uncle".
3. In his statement with respect to the investigation by the Health Care Complaints Commission as to his registration as a psychologist, the applicant vehemently denied the nephew's allegations and denied that he had ever intentionally accessed inappropriate sexual content via the internet or any other source. He contended that he had accessed the stories by mistake during a search for erotic gay stories and that he had assumed he had clicked on the "young adult" link rather than the "adult youth" link on one of the websites visited.
4. The applicant's oral evidence was that the activity of searching for erotic gay stories did not warn him that it contained material that was not legal or was deviant in nature. He said he could not tell what the stories were about until he clicked into various categories and lists of titles, and that he was surprised to discover the stories concerned relationships between adults and teenagers. He said that, at the time, the story depicting sex between an adult man and a teenage boy of legal age did not cause him concern. He said that, at that moment in time, the inappropriate pornographic material was read for sexual gratification. He was not reading with critical thinking. Subsequently, in response to a question from the Senior Member, the applicant said that if he were to be asked now, his response would be that it would be inappropriate to access material that depicts sex between an adult man and a teenage boy.
5. Contrary to the applicant's belief that he had accessed "young adult" stories, the search history on one website link only recorded searches on the terms "adult friends" and "adult youth". Contrary to the applicant's contention that the content of stories would only be revealed when a particular story is accessed, each category of story contained descriptions of their general content. The applicant contended that when viewing online content on a mobile phone, only a portion of the content is visible, and that it is necessary to scroll right to access further descriptive content. However, on the screenshot evidence of webpages before us, it appears that whilst very little information on the content of stories is available, the headline descriptors capture the essence of each story. For instance, "adult youth" is described as "stories about cross-generational relationships".
6. Arguably, the timing of the applicant's access to the third story permitted him an opportunity to read the second story. The second story, consistent with the first, contained fictional stories of sexual conduct with children. It is a matter of concern that EPP then accessed the third story, rather than navigating out of the category of story that he remained in, particularly since there was a range of categories of stories available from the main menu.
7. On balance, we agree with the respondent's submissions that the applicant's conduct in accessing online erotic stories involving children and teenagers raises material concerns that suggest a sexual proclivity towards children, the existence of which is a factor to take into account when assessing whether he poses a risk to the safety of children. The applicant's oral testimony that he wasn't thinking critically when successively reading the erotic stories involving young teenagers, but that he was reading "inappropriate" material purely for sexual gratification, is suggestive of a long-term innate tendency to engage in this activity.
8. We cannot rule out the risk that this activity may pose in the applicant's behaviour and conduct involving children. Applying the reasoning in BKE at [33] (cited with approval in CXZ at [54]), the applicant's conduct in this area of activity means that the existence of a risk to a child has not been disproven.

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)

1. At the time that this matter was heard before this Tribunal, it had been 3 years and 10 months since the time of the initial disclosure giving rise to the charges which then did not proceed to trial.
2. The applicant has not been charged or convicted of any offences subsequent to the matters that are the subject of this current proceeding.
3. Since the time of the alleged offences, the applicant has fathered a child and undertaken some part-time work in his own business including writing policies, conducting risk assessments for persons going into certain fields of occupation, and some public speaking type work.
4. The applicant sought a psychological assessment with Mr Jones and the preparation of a report to be used in these proceedings, as discussed elsewhere in these reasons.

The age of the person at the time the offences or matters occurred: s 30(1)(c)

1. The applicant was 30 years of age at the time that the conduct was alleged to have first occurred. The applicant was 35 years of age at the time that the alleged conduct was first disclosed.

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: s 30(1)(d)

1. The complainant was around 8 to 9 years of age at the time that the conduct was alleged to have first occurred. The complainant was 13 years of age at the time that he disclosed the alleged conduct and was soon to turn 14 (in around 4 months' time).
2. The complainant was the son of the applicant's older brother and some time in and around 2012/2013 he began attending the granny flat where the applicant resided on the property where the family gathered on Friday evenings to have dinner and socialise. The applicant did not always attend the dinners and sometimes stayed inside the granny flat. The complainant played games on the applicant's Xbox on these occasions and the applicant therefore had an opportunity to get to know the complainant through these occasions.
3. The complainant's familial relationship with the applicant, and the closeness of the complainant's relationship with his family created a potential additional layer of vulnerability for the complainant, such that he felt uncomfortable in saying that he did not want to massage his uncle.
4. The applicant's interview with Police disclosed that he was cautious with the complainant, because the applicant knew the complainant had a history of making threats that he would say he had been physically touched if he didn't get his way. The applicant's oral evidence was that there had been several incidents where if the applicant didn't let the complainant into the house, the complainant would allege the applicant had touched him. The applicant's evidence was that, on other occasions, the complainant would threaten to say such things as that he had been physically assaulted, denied food, sexually assaulted, or poisoned. The applicant said that usually the complainant would get his way. The applicant was therefore well aware of the behavioural history of the complainant.
5. We are satisfied, on the totality of the evidence, that the applicant allowed himself to be alone with the complainant on a number of occasions, away from the company of the remainder of the family. Given his tertiary education in psychology and work as a counsellor with children, the applicant was a person who was educated and trained in recognising vulnerabilities and problematic behaviours in children.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e)

1. The age difference between the applicant and the complainant is around 21 years.
2. The applicant is the victim's uncle, and the family met regularly on Friday evenings for a meal and social interaction.

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f)

1. The applicant knew the complainant was a child. He was the victim's uncle and was in a close-knit family who, before the disclosure in 2018, regularly gathered to have a meal on Friday evenings. Accordingly, he was well aware of the victim's age as well as his vulnerabilities including an alleged history of making threats and engaging in manipulative behaviour in order to get his way.

The person's present age: s 30(1)(g)

1. The applicant is now 39 years of age.
2. Noting the pensionable age of a person of his age, he has approximately 28 'working' years of his life remaining.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

1. Prior to the alleged offences, the applicant had never been charged or convicted of any offence and does not otherwise have a criminal history.
2. With the exception of the conduct giving rise to the charges, the applicant has not otherwise been the subject of any formal complaints or charges in relation to children throughout the course of his career working with children.
3. None of the referees who provided affidavits were required for cross-examination. We note that their affidavits were given in full knowledge of the allegations made by the applicant's nephew. We have attributed an appropriate, albeit small, amount of weight to the affidavits which lend support to the application, as discussed below in relation to s 30(1)(j).

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)(i)

1. If the conduct occurred, it would have had an adverse impact on the complainant. If the conduct were to occur again with respect to any child, it would have an adverse impact on the child, both emotionally and psychologically.
2. The likelihood of any repetition by the applicant of the alleged conduct with respect to any child is not a matter on which the Tribunal has received a compelling, or even indicative, psychological risk assessment.

Independent expert's psychological assessment

1. In connection with his assessment by a forensic psychologist (Mr Jones), the applicant denied the allegations by the complainant. We note, however, that while Mr Jones' report dated 20 September 2021 sets out the context in which the complainant was upset and made allegations to his parents, it does not set out the allegations made by the nephew.
2. Mr Jones found the applicant to be oriented to time, place and the purpose of the assessment, and responded in a candid manner to all aspects of the interview. He was found to be in the average range of cognitive functioning, with good insight and judgment. Mr Jones concluded that the applicant's structure in his responses did not contain contradictions or logical inconsistencies, and that he did not appear evasive or unclear.
3. By way of formal diagnoses, Mr Jones opined that the applicant does not suffer from any psychological or psychiatric disorders. Mr Jones relied upon the applicant's report that he has never suffered from a mental health condition or received any mental health treatment, consumed any alcohol or experimented with illicit substances, although he is said to have experienced anxiety and mental health difficulties (including passive suicidal ideations) for around 3 weeks after his arrest by Police.
4. Mr Jones noted the applicant's use of online heterosexual and mixed same-sex pornography and his denial of ever watching child pornography.
5. Under cross-examination, Mr Jones acknowledged that he was not familiar with the legislation and the criteria that the Tribunal considers when assessing whether a person poses a risk to the safety of children. He nonetheless held the view that the applicant had a good understanding, if the allegations were true, of the impact that the alleged conduct would have upon a child. This view is a matter which we regard as relevant to assessing the overall conduct of the applicant.
6. On the basis of his review of documents provided, Mr Jones opined that it did not appear the applicant inappropriately extended a relationship with the victim beyond what would be expected as a usual relationship with a family as a relative/uncle. However, under cross-examination, Mr Jones confirmed that his opinion was based on the premise that none of the allegations made against the applicant were true. He conceded that, if the allegations were true, that would suggest a testing of personal boundaries and inappropriate extending of relationships.
7. Mr Jones confirmed under cross-examination that he was qualified to comment upon whether the use of pornography is suggestive of unhealthy sexual practices. He agreed that he was qualified to comment upon the use of pornography as well as other factors such as personality disorders or psychological conditions that could have an impact on a person's risk to the safety of children. Mr Jones said he was aware that the applicant regularly used pornography and commented that the use of pornography is common in society and that in his opinion viewing pornography three times a month is not considered excessive. He said that in other circumstances where people access hours of pornography every day, the reliance on pornography may raise a 'red flag'. However, his report and opinion under cross-examination offered no definitive view on whether the applicant's use of pornography in any way impacted upon an assessment of the applicant's risk towards the safety of children.
8. With respect to the applicant's admission in his record of interview with Police that he had asked complainant whether he had had "a wank", Mr Jones' opinion was that this did not indicate a sexual deviancy towards children and did not suggest the applicant posed a risk to the safety of children.
9. Mr Jones' report referred to the complainant's "history of telling lies and making untruthful allegations to hurt people", however it appears this comment was made in reliance upon the applicant's statement to the expert. In response to a question from the Tribunal as to whether his opinion would change if thirty percent of the allegations were true, Mr Jones said that he was not aware that thirty percent of the allegations were true and which of the allegations were untrue. He answered that he could not form a safe opinion on the veracity of the complainant without interviewing him.
10. With respect to an assessment of the risk that the applicant poses to the safety to children, Mr Jones concluded: "With regard to the risk to the safety of children I am considerate of the real and appreciable risk, where any risk will be a real and not fanciful risk to the safety of children. With regard to the assessment and documents provided I am of the opinion [the applicant] does not present a real or appreciable risk to the safety of children."
11. While Mr Jones opined that the applicant does not present a real or appreciable risk to the safety of children, the Tribunal cannot safely rely upon his report/opinion because we consider it suffers from a number of deficits: 1. it is based on an assessment of evidence given to the expert rather than an assessment of the applicant using the expert's specialist expertise and knowledge; 2. the report is based on an assumption that the allegations were wholly untrue; 3. the report is incomplete since the expert did not consider the full extent of the s. 58 bundle of documents provided to him and this included the Police reports and the Police interview of the complainant, and if he did read those documents, he could not recall the material; 4. the expert acknowledged that he was not familiar with the legislation or the s 30(1) factors to be taken into consideration when assessing risk.
12. Accordingly, we have assigned very little weight to Mr Jones' assessment of the applicant's risk to the safety of children.

Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)

1. The Tribunal understands there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration.

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

1. The applicant provided the following information in support of the application: 1. his affidavit (which, as previously noted, addressed in some detail his body insecurities and medical procedures). As noted earlier in these reasons, we do not afford weight to the information about the applicant's insecurities or surgical scars in terms of our assessment of the evidence supporting the allegations; 2. Mr Jones' assessment report, to which we give very little weight; 3. a character reference from his wife who described the applicant as a kind and respectful person and was never abusive or aggressive with others. The applicant's wife deposed that the applicant was incapable of hurting anyone physically, sexually or emotionally and that she never doubted his morals and behaviours. In his interview with Police, EPP expressed anxiety about his wife finding out about his accessing pornography and the content of his interview, saying that it would "break" his wife. This suggests that EPP's wife is not aware of the applicant's behaviour in that regard. For that reason, and discounting her comments in the circumstances of a marital relationship, we attach only a very small amount of weight to her character reference; 4. a character reference from a sister sibling (ES) attesting to the behaviour of the applicant's nephew in making threats of physical and sexual abuse against members of the family including his mother and the applicant. ES made particular reference to the nephew's threat against the applicant in the context of his work in child protection services, asserting that the nephew knew his threat had potential to have the applicant fired. In the circumstances of a sibling relationship, we only attach a very small amount of weight to this reference; 5. a personal reference from another sister sibling (RS) who deposed to the nephew threatening his mother that he would tell everyone at school that she had bashed him when he was not permitted to sit with the adults at one of the family gatherings. Again, in the circumstances of a sibling relationship, we only attach a very small amount of weight; 6. a personal reference from another sister sibling (MS) who deposed to the nephew threatening his mother that he would report her to his school for physical abuse if he did not get what he wants. It is interesting to note that MS's affidavit also described the nephew's mother as laughing off the threat and using a derogatory term to describe the nephew, suggestive of a negative culture generally in the family. Again, in the circumstances of a sibling relationship, we only attach a very small amount of weight; 7. a personal reference from another nephew of the applicant (JS) (not the complainant) who deposed that the complainant said on several occasions that to get what he wants he blackmails people, that he had lied to Police, and that the complainant had said "I can't believe how dumb the cops are, they listen to everything I say, they believe a kid". We only attach a very small amount of weight to this personal reference in the circumstances of the familial relationship; 8. (as provided to the Children's Guardian), a professional employment reference from a previous manager who observed the applicant to be a person who demonstrates sound clinical reasoning and a "fantastic clinician, as he has a lot to provide families". This reference confirmed that no inappropriate behaviour on the part of the applicant was observed, and that all the families who worked with the applicant were happy with his work. In assessing whether the applicant poses a risk to the safety of children, we afford a small amount of weight to this reference on the applicant's good character and professional approach to his work; 9. (also as provided to the Children's Guardian), a professional employment reference from a previous manager who observed the applicant in his role as a residential care worker and case manager. In observing the applicant working with children, this referee said the applicant's focus was always on "ensuring the safety of children", that the Department of Communities & Justice staff would request the applicant to be put on a case and there were never any concerns. She expressed surprise at the allegations, and said she would employ him again, as he is "very passionate about kids". Again, we afford a small amount of weight to this reference on the applicant's good character and overall work performance in assessing the risk.

Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)

1. The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 30A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.

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

1. The Tribunal considered matters submitted on behalf of each of the applicant and the respondent relevant to our assessment of risk.
2. The respondent made submissions that incidents during the applicant's employment are suggestive of dishonesty or a failure to recognise issues pertaining child protection. We do not regard these matters as materially relevant to our assessment of his risk to the safety of children.

Conclusion

1. For the reasons set out in this decision, we are satisfied that the applicant's conduct does pose a real and appreciable risk to the safety of children. It is therefore not necessary for us to consider the matters referred to in s 30(1A) of the Act.
2. The Tribunal is of the view that the correct and preferable decision is to affirm the respondent's Decision not to grant the applicant a WWCC clearance.

Orders 1. The decision of the Children's Guardian dated 10 February 2021 to refuse to grant the applicant a working with children check clearance is affirmed.

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 28 February 2022 - Cases cited amended 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: 28 February 2022